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PARTIES 


MORTGAGE  FORECLOSURES 


Their  Rights  and  Liabihties 


IN    CONNECTION    WITH    ACTIONS    AND    PROCEEDINGS    FOR 
THE  FORECLOSURE  OF  MORTGAGES. 

By  CHARLES   H.  WILTSIE 

Of  tb.e  Koch.ester  Bar. 


ROCHESTER,  N.  Y. 
Williamson  &  Higbie,  Law  Publishers. 

1885. 


Entered  according  to  act  of  Congress,  in  the  year  one  thousand  eight  hundred  and 

eighty-flve. 

By  CHARLES  HASTINGS  WILTSIE, 

In    the   oflSce   of  the   Librarian  of  Congress. 


T 


\6 


HONORABLE  FRANCIS  A.  MACOMBER, 

ONE  OF  THE  JUSTICES  OF  THE  SUPREME  COURT  OF  THE  STATE  OF 
NEW  YOR&, 

this  book  is  respectfully  inscribed 
By  the    author. 


PREFACE. 


This  book  has  been  written  for  the  use  of  practicing 
attorneys  wlio  have  to  foreclose  mortgages.  It  treats 
directly  and  specially  of  parties  to  foreclosures,  and 
indirectly  of  their  rights  and  liabilities  in  connection 
therewith.  The  design  of  the  author  has  been  not  to 
examine  the  whole  subject  of  the  law  of  mortgages,  but 
to  treat  exhaustively  and  analj^tically  a  single  branch 
of  that  law.  A  personal  exanaination  has  been  made 
of  every  case  cited  with  a  view  to  making  the  book 
accurate  as  well  as  exhaustive,  and  as  far  as  possible 
original.  Digests  and  general  text-books  have  been 
used  very  little ;  the  work  has  been  written  up  from 
the  decisions  of  the  courts  as  contained  in  the  state 
reports,  to  which  access  has  been  had  in  the  Court  of 
Appeals  library,  at  Rochester,  N.  Y.  The  indexes  in 
over  1,500  volumes  of  reports  have  been  separately 
examined;  consequently  much  new  matter  has  been 
obtained  that  can  be  found  in  no  other  treatise  on 
mortgages. 

In  the  foot  notes  the  limitations  and  modifications 
of  general  principles  and  the  special  and  peculiar 
instances  are  given  fully.  The  practicing  attorney  is 
famihar  with  general  principles ;  he  wants  the  peculiar 
mid  special  ca?es. 


VI  PREFACE. 

The  date  of  every  case  is  placed  after  its  citation  at 
the  suggestion  of  the  publishers,  a  feature  that  it  is 
hoped  will  add  greatly  to  the  usefulness  of  the  book. 
It  is  believed  that  parties  having  a  general  treatise  on 
the  law  of  mortgages  will  find  this  book  a  valuable 
adjunct  to  the  practical  work  of  conducting  foreclosures. 

Rochester,  N.  Y., 

September  Isty  1885. 


TABLE  OF  CONTENTS. 


INTRODUCTION. 


§  1.  Generally. 

2.  Methods  of  foreclosure. 

3.  Parties  generally  in  equitable  foreclosures. 

4.  Application  by  American  courts. 

5.  Result  of  foreclosure  upon  the  parties. 


PART  I. 

PARTIES    PLAINTIFF. 

§  6.  Introductory. 

7.  Sole  mortgagee,  owning  the  mortgage,  may  foreclose. 

8.  Assignee,  sole  owner  of  mortgage,  may  foreclose. 

9.  Joint  mortgagees ;  any  one  or  more  may  foreclose. 

10.  Partners ;  any  one  or  more  may  foreclose. 

11.  Joint  mortgagees,  one  dying ;  doctrine  of  survivorship. 

12.  Mortgagees,  owners  in  severalty;  any  one  or  more  may 

foreclose. 

13.  Owner  of  one  of  several  notes  secured  by  a  mortgage  may 

foreclose. 

14.  Owner  of  mortgage,  having  pledged  the  same  as  collateral 

security,  may  foreclose. 

15.  Assignee  of  mortgage  as  collateral  security  may  foreclose. 

16.  Owner  of  an  equitable  interest  of  any  kind  in  the  mort- 

gage, a  real  party  in  interest,  may  generally  foreclose. 

17.  A  surety  for  the  mortgage  debt  may  sometimes  foreclose. 

18.  Assignee  of  a  mortgage  without  the  bond  cannot  foreclose. 


VIU  TABLE    OF    CONTENTS. 

§  19.     Assignee  of  the  note,  bond  or  debt,  may  foreclose,  though 
the  mortgage  is  not  assigned. 

20.  Mortgagees  owning  contemporaneous    mortgages,  being 

equal  liens,  any  one  or  more  may  foreclose. 

21.  Owner  of  two  mortgages  cannot  foreclose  both  at  the  same 

time  in  separate  actions. 

22.  Assignee  in  bankruptcy  or  by  general  assignment,  or  re- 

ceiver of  a  corporation,  may  foreclose. 

23.  Assignee  pendente  lite  may  continue  the  foreclosure. 

24.  Owner  of  mortgage  dying,  personal  representatives  may 

foreclose. 

25.  Owner  of  mortgage  dying,  heirs,  devisees  and  legatees 

generally  cannot  foreclose. 

26.  Mortgage  executed  to  an  executor  or  administrator,  the 

executor  or  administrator  or  his  successor  in  office  may 
foreclose. 

27.  Foreign  executors  and  administrators,  when  they  may 

foreclose. 

28.  Trustees  may  foreclose. 

29.  Beneficiaries,  cestuis  que  trust,  may  sometimes  foreclose. 

30.  Mortgages  to  persons  in  official  capacity,  they  or  their  suc- 

cessors may  foreclose. 

31.  A  maiTied  woman  6wning  a  mortgage  may  foreclose. 


PART    II. 

PAETIES    DEFENDANT NECESSARY    TO    PERFECT    THE    TITLE. 

CHAPTER  I. 

OWNERS   OF   THE   FEE   TITLE. 

§  32.     Introductory. 
83.     General  principles. 

34.  Mortgagor  still  owning  the  equity  of  redemption  nec- 

essary. 

35.  Mortgagor  no  longer  owning  the  equity  of  redemption 

not  necessary. 


TABLE    OF    CONTENTS.  IX 

36.  Mortgagor  still  holding  only  a  divided  or  undivided  part 

of  the  premiHes,  or  V)oing  a  tenant  in  common  by  descent 
or  gi-ant,  a  necessary  party. 

37.  Mortgagor  still  holding  any  kind  of  an  equitable,  con- 

tingent or  latent  interest,  generally  necessary. 

38.  The  purchaser  and  owner  of  the  equity  of  redemption  by 

grant  or  otherwise  from  the  mortgagor  necessary. 

39.  Intermediate  purchasers  and  owners  of  the  equity  of  re- 

demption,  who  are  no   longer  owners,    generally    not 
necessary. 

40.  Purchaser  pendente  Hie  not  necessary. 

41.  Common-law  doctrine  of  lia  pendens. 

42.  New  York  statutory  provisions  for  Us  pendens  ;  other  states. 

43.  Mortgagor  a  married  woman,  having  a  separate  estate, 

necessary. 

44.  Wife  of  mortgagor  or  owner  of  the  equity  of  redemption 

necessary. 

45.  Wife  of  mortgagor  ;  service  of  summons  or  process. 

46.  Wife  of  mortgagor  or  owner  of  the  equity  of  redemption 

not  necessary  in  those  states  where  the  common-law 
doctrine  of  dower  is  changed. 

47.  The  husband  of  a  mortgagor  who  is  a  married  woman, 

having  a  separate  estate,  generally  not  necessary. 

48.  Heirs  of  mortgagor  or  owner  of  the  equity  of  redemption 

necessary. 

49.  Devisees  of  mortgaged  premises  necessary. 

50.  Legatees  and  annuitants  necessary. 

51.  Executors  and  administrators  generally  not  necessary. 

52.  Trustees  holding  any  interest  of  whatever  kind  in  mort- 

gaged premises  for  beneficiaries  necessary. 

53.  Cestuis  que  trust  and  beneficiaries  necessary. 

54.  Remaindermen  and  reversioners  necessary. 

55.  Assignee  in  bankruptcy  or  by  voluntary  general  assign- 

ment, and  receiver  of  a  corporation,  necessary. 

56.  Infants,  lunatics,  idiots  and  habitual  drunkards  necessary 

parties. 

57.  Mortgage  executed  by  administrator  or  executor'  to  pay 

decedent's  debts,  heirs  and  devisees  of  the  decedent 
necessary. 


TABLE  OF  CONTENTS. 

58.  Corporations  necessary  parties  by  corporate  name. 

59.  Tenants  and  occupants  necessary. 

CHAPTER  11. 

SUBSEQUENT   MORTGAGEES    AND   LIENORS. 

60.  Introductory. 

61.  Subsequent   mortgagees,  still   owning  their  mortgages, 

necessary  parties. 

62.  Subsequent  judgment  creditors,  still  owning  judgments, 

necessary. 

63.  Mechanic's  lien,  owner  of,  necessary. 

64.  Subsequent  mortgagee,  judgment  creditor  or  other  lienor, 

an  assignor  no  longer  holding  the  incumbrance,  and 
intermediate  assignors,  not  necessary. 

65.  Subsequent  mortgagees  or  other  lienors,  still  holding  any 

kind  of  an  equitable  or  contingent  interest  in  the  lien, 
or  being  part  or  joint  owners,  generally  necessary. 

66.  Assignee  of  subsequent  mortgage,  judgment  or  other  lien, 

necessary. 

67.  Assignee  of  subsequent  mortgage  or  lien  pendente  lite  not 

necessary. 

68.  Incumbrancer  pendente  lite  not  necessary. 

69.  Subsequent  mortgagee  or  lienor  a  married  woman,  does 

not  alter  the  rule  ;  necessary. 

70.  Heirs,  devisees,  legatees  and  annuitants  of  deceased  sub- 

sequent mortgagee  or  lienor  generally  not  necessary. 

71.  Executors  and  administrators  of  a  deceased  subsequent 

mortgagee  or  lienor  necessary. 

72.  Assignee  in  bankruptcy  and  voluntary  general  assignee 

of  subsequent  mortgagee  or  lienor  necessary. 

73.  General  guardian  of  infant  and  committee  of  lunatic,  idiot 

or  habitual  drunkard,  trustees  and  beneficiaries  holding 
subsequent  mortgage  or  lien,  necessary. 

74.  Purchasers  at  tax  sales,  boards  of  supervisors,  state  comp- 

trollers and  municipal  corporations  parties. 


TABLE    OF    CONTENTS.  XI 

CHAPTER  III. 

PARTIES  HOLDING  PART  OR  EQUITABLE  INTERESTS  IN  THE  MORTGAGE 
UNDER  FORECLOSURE,  OR  LIENS  CONTEMPORARY  THEREWITH, 
NOT   JOINING    AS   PLAINTIFFS,    NECESSARY   DEFENDANTS. 

§  75.     Introductory. 

76.  Assignor  having  made  an   absolute   assignment   of  the 

mortgage,  or  no  longer  holding  an  interest  in  it,  not 
necessary. 

77.  Assignee  of  a  mortgage  absolutely  assigned,  never  a  nec- 

essary defendant. 

78.  Assignor  of  a  mortgage  assigned  conditionally  or  as  col- 

lateral security,  a  necessary  party. 

79.  Assignee  of  a  mortgage  assigned  as  collateral  security,  a 

necessary  defendant,  when  the  foreclosure  is  commenced 
by  the  assignor  or  mortgagee. 

80.  Joint  or  several  mortgagees ;  action  commenced  by  one, 

the  others  necessary  defendants. 

81.  Contemporary  and  equal  mortgagees ;    foreclosure  com- 

menced by  one,  others  necessary  defendants. 

82.  Ownership  of  mortgage  doubtful,  or  in  dispute;  action 

commenced  by  one  claimant,  other  claimants  advisable 
defendants. 

83.  Trustees  and  beneficiaries  sometimes  necessary  defend- 

ants. 


PART    III. 

PARTIES  PERSONALLY  LIABLE  FOR  THE  MORTGAGE  DEBT. 
GENERAL  PRINCIPLES POINTS  IN  PRACTICE. 

§  84.  Introductory. 

85.  General  principles  —  at  common-law. 

86.  Theory  of  the  English  and  common-law  practice. 

87.  General  principles  —  statutory  provisions  modifying  com- 

mon-law rule. 


Xii  TABLE    OF    CONTENTS. 

§  88.  Points  in  practice  —  the  complaint. 

89.  Points  in  practice  —  the  decree  of  foreclosure. 

90.  Points  in  practice  —  the  judgment  for  deficiency. 


CHAPTER  I. 

PARTIES  ORIGINALLY  LIABLE. 

j  91.     Introductory. 

92.  Mortgagor  signing  the  bond  or  note,  or  covenanting  in 

the  mortgage  payment  of  the  debt,  liable. 

93.  All  persons  signing  the  bond  or  note  which  the  mortgage 

accompanies,  liable. 

94.  All  persons  guaranteeing  the  bond  and  mortgage  at  its 

inception,  liable. 

95.  A  married  woman  signing  the  bond  or  other  obligation, 

liable  —  general  principles. 

96.  A  married  woman  signing  the  bond  or  other  obligation, 

liable  — act  of  1884  in  New  York. 

97.  A  married  woman  signing  the  bond  or  other  obligation, 

liable  —  rule  in  New  York  prior  to  1884,  and  jn  most 
states  at  present. 

98.  Persons  originally  liable,  deceased,  their  estates  liable ; 

personal  representatives  proper  parties. 

99.  Persons  originally  liable,  deceased,  their  heirs  and  devisees 

not  proper  parties. 
100.     A  person  originally  liable  making  an  assignment  in  bank- 
ruptcy or  voluntarily,  assignee  proper. 

CHAPTER  11. 

PARTIES    SUBSEQUENTLY    LIABLE. 

5  101.     Introductory. 

102.  Purchaser  of  a  mortgagor,  conveyance  made  subject  to 

the  mortgage,  not  liable. 

103.  Purchaser   of  a   mortgagor,    assuming  payment  of  the 

mortgage,  liable — general  principles. 


TABLE    OF    CONTENTS.  XIU 

§  104.     Theories  of  law  upon   which   a  mortgagee   is  allowed 
the  benefit  of  the  contract  of  assumption. 

105.  Purchaser   not  personally   liable   when   his   grantor  is 

not  personally  liable,  though  he  assumes  payment 
of  the  mortgage. 

106.  The  assumption  of  a  mortgage  by  a  subsequent  mort- 

gagee does  not  make  him  personally  liable  to  the 
prior  mortgagee. 

107.  Can  a  grantor  release  his  purchaser,  assuming  a  mort- 

gage, from  his  liability  to  the  mortgagee  ? 

108.  Intermediate  purchasers,  having  assumed  payment  of 

the  mortgage,  liable. 

109.  Assignor  of  a  mortgage,  guaranteeing  payment  or  col- 

lection, liable. 

110.  Intermediate    assignors   of    a   mortgage,   guaranteeing 

payment,  liable. 

111.  Assignor   of  a   mortgage,    covenanting   as  to   title  and 

against  defenses,  liable. 

112.  All   persons   guaranteeing   payment   or  collection  of  a 

bond  and  mortgage  by  a  separate  instrument,  liable. 

113.  Married   women   obligating   themselves  in   any   of  the 

preceding  ways,  generally  liable. 

114.  Persons  subsequently  liable  in   any  of  the   preceding 

ways,  deceased,  their  estates  liable  —  personal  rep- 
resentatives proper  parties ;  heirs  and  devisees  not 
proper  parties. 


PART  IV. 

PRIOR    MORTGAGEES     AND    ADVERSE     CLAIMANTS     AS     PARTIES 

DEFENDANT. 

§  115.     Introductory. 

116.  When  prior  mortgagees   and   lienors   cannot  be  made 

defendants. 

117.  When  they  can  properly  be  made  defendants. 


XIV  TABLE    OF    CONTENTS. 

§  118.     Parties  having  a  title  paramoutit  to  the  mortgage  neither 
proper  nor  necessary  defendants. 

119.  Adverse  claimants  neither  necessary  nor  proper  parties. 

120.  Subsequent  mortgagees  or  incumbrancers  claiming  priority 

of  lien,  proper  defendants  for  litigating  that  issue. 


TABLE  OF  CASES. 


PAGE. 

Abbott  V.  Godfrey's  Heirs 1  Mich.  178 HO 

Ackerson  v.  Lodi  Branch  R.  R 28  N.  J.  Eq.  542 31,  176 

Adams  v.  Bradley 12  Mich.  346 85,  86,     184 

Adams  V.  Green 34  Barb.  (N.  Y.)  176 53 

Adams  v.  McPartlin 11  Abb.  N.  C.  (N.  Y.)  369. . . 256,  258 

Adams  v.  Parker 12  Gray  (Mass.),  53 14 

Adams  v.  Paynter 1  Coll.  (Eng.)  530 61,  140 

Addison  v.  Crow 5  Dana  (Ky.),  279 93 

iEtna  Life  Ins.  Co.  v.  Finch 84  Ind.  301 22 

Agricultural  Ins.  Co.  v.  Barnard 96  N.  Y.  525 130 

Ala.  Life  Ins.  &  Trust  Co.  v.  Pettway,  24  Ala,  544 64 

Albany  City  S.  Inst.  v.  Burdick 87  N.  Y.  40 234 

Albany  Fire  Ins.  Co.  v.  Bay 4  N.  Y.  9  ;  aflPg  4  Barb.  407. , .  99,  124 

Albright  v.  Cobb 30  Mich.  355 51 

Aldrich  v.  Lapham 6  How.  (N.  Y.)  129 131 

Aldrich  v.  Stephens 49  Cal.  676 90,     97 

Alexander  V.  Frary 9  Ind.  481 112,  219 

Alexander  v.  Greenwood 24  Cal.  505 145 

Allen  V.  Allen 34  N.  J.  Eq.  493.  ..193,  204,  230,  238 

Allen  V.  Brown 44  N.  Y.  228 12 

Allen  V.  Case 13  Wis.  621 147 

Allen  v..Knight 5  Hare  (Eng.),  280 61 

Am.  But'nholeCo.v.Burl'gtonM.L.A.  61  Iowa,  464 142,  148 

Ames  V.  Foster 3  Allen  (Mass.),  541 214 

Amphlett  V.  Hibbard 29  Mich.  298 104 

Anderson  v.  Austin 84  Barb.  (N.  Y.)  319 118 

Anderson  v.  Baumgartner 27  Mo.  Rep.  80 15 

Anderson  V.  Stather L.J.  (Eq.)  16  vol.  N.  S.  (Eng.)  152,  122 

Andrews  v.  Fiske 101  Mass.  422 14 

Andrews  v.  Gillespie 47  N.  Y.  487 12,  15,  152,  155,  172 

174,  175 

Andrews  v.  McDaniel 68  N.  C.  385 14,     37 

Andrewsv.  Stelle 22  N.  J.  Eq.  478 76 

Andrews  v.  Swanton 81  Ind.  474 109 

Andrews  v.  Wolcott 16  Barb.  (N.  Y.)  21 227 

Anon  V.  Anon 10  Paige  (N.  Y.),  20 94 

Anson  v.  Anson 20  Iowa,  55 140,  149 

Anthony  v.  Peay 18  Ark.  24 54 


XVI  ^  TABLE    OF    CASES. 

PAGE. 

Anthony  V.  Wood 19  Week.  Dig.  (N.  Y.)  177 179 

Archer  v.  Jones 4  Cush.  (26  Miss.)  583 24,  181 

Argald  V.  Pitts 78  N.  Y.  239 201 

Armory  v.  Fairbanks 3  Mass.  562 189 

Amistrongv.  Ross 20  N.  J.  Eq.  109 99 

Arnaud  V.  Grigg 29  N.  J.  Eq.  482 238,  240 

Arnot  V.  Post 6  Hill  (N.  Y.),  65.. .139,  145,  149,  151 

Ashhurst  v.  Montour  Iron  Co 35  Penn.  St.  30 64 

Astor  V.  Turner 11  Paige  (N.  Y.),  436 135 

Atchison  v.  Surguine 1  Yerg.  (Tenn.)  400 52,  54 

Atkinson  V.  Stewart 46  Mo.  Rep.  510 101 

Att'y-Gen'l  v.  Guardian  M.  L.  I.  C. . .   77  N.  Y.  272 49 

Atwaterv.  UnderhiU 22  N.  J.  Eq.  599 17 

Atwater  V.  West 28  N.  J.  Eq.  361 142 

Augustine  v.  Doud 1  111.  App.  588 156 

Aurora  Ag.  &  H.  Society  v.  Paddock,  80  111.  263 133 

Aiistin  V.  Burbank 2  Day  (Conn.),  474 44 

Averett  v.  Ward 1  Busbee's  Eq.  (N.  C. )  192. . ,  111,  117 

Averill  v.  Taylor 8  N.  Y.  44 38,  40 

Averill  V.  Taylor 5  How.  (N.  Y.)  476 61 

Avery  v.  Ryerson 34  Mich.  362 141,  166 

Avery  V.  Vansickle 35  Ohio  St.  270 189 

Ayers  v.  Adams 82  Ind.  109 36 

Aylet  V.  Hill 2  Dick.  (Eng.)  551 188 

Ayres  v.  Adair  County 61  Iowa,  728 168 

Babbitt  V.  Bowen 32  Vt.  437 54 

Babcock  v.  Jordan 24  Ind.  14 240 

Bache  v.  Doscher 41  Supr.  Ct.  (N.  Y.)  150 ;  aflF'd  67 

N.  Y.  429 200,  228,  254,  257 

Bache  V.  Pm-cell 6  Hun  (N.  Y.),  518 142 

Bachelor  V.  Middleton 6  Hare  (Eng.),  75 116 

Bailey  V.  Gould Walker  Ch.  (Mich.)  478 43 

Bailey  v.  Myrick 36  Me.  50 76,  86 

Baird  v.  McConkey 20  Wis.  297 192 

Baker  V.  Hawkins 29  Wis.  576 91 

Baker  v.  Piei-son 6  Mich.  522 141 

Baker  v.  Scott 62  111.  86 103 

Baker  v.  Shejihard 30  Ga.  706 17,  19 

Baker  v.  Terrell 8  Minn.  195 38 

Baldwin  v.  Allison 4  Minn.  25 51 

Baldwin  v.  Thompson 15  Iowa,  504 163 

Ballard  v.  Anderson 18  Tex.  377 148 

Ballin  V.  Dillaye 37  N.  Y.  35 212,214,  253 

Bank  V.  Campbell 2  Rich.  Eq.  (S.  C.)  179 35 


TABLE    OF    CASES.  XVU 

PAGE. 

Bank  V.  Connelly 8  Abb.  (N.  Y.)  128; 98 

Bank  of  Commerce  v.  Lanahan 45  Md.  396 64 

Bank  of  England  v.  Tai-leton 1  Cush.  (Miss.)  173 27 

Bank  of  Indiana  v.  Anderson 14  Iowa,  544 44 

Bank  of  Mobile  V.  P.  and  M.  Bank..   9  Ala.  645 25 

Bank  of  Orleans  v.  Flag-g 3  Barb.  Ch.  (N.  Y.)  816 . .  256,  263,  265 

Bank  of  Rochester  v.  Emerson 10  Paige  (N.  Y.),  359...  194,  200,  203 

Bank  of  U.  S.  v.  Carroll 4  B.  Mon.  (Ky.)  50 141,  159 

Bank  of  U.  S.  v.  Covert 13  Ohio  Rep.  240; 25,  26 

Bank  of  U.  S.  V.  Huth 4  B.  Mon.  (Ky.)  450 44 

Bank  of  Wis.  v.  Abbott 20  Wis.  570 34 

Banning  v.  Bradford 21  Minn.  308 263 

Banta  V.  Wood 32  Iowa,  469 195 

Bard  V.  Poole 12  N.  Y.  495 30,  91,  118,  127 

176,  177,  178 

Bardstown  &  L.  R.  R.  Co.  v.  Metcalfe,  4  Mete.  (Ky.)  199 63 

Barkley  v.  Loi-d  Reay 2  Hare  (Eng.),  306 61,  183 

Barraque  v.  Manuel 7  Ark.  516 11,  172 

Barrett  V.  Blackmar 47  Iowa,  569 23,  89 

Barrett  V.  Cochran 8  Rich.  (S.  C.)  48 Ill 

Bartley  V.  Boyd 34  Vt.  256 67 

Barton  v.  Hintrager 18  Iowa,  348 163 

Barton  v.  Kingsburg 43  Vt.  640 92 

Bates  V.  Ruddick 2  Clarke  (Iowa),  423 86 

Bathgate  V.  Haskins 59  N.  Y.  533 205 

Basford  v.  Pearson 7  Allen  (Mass.),  505 214 

Batre  v.  Auze's  Heirs 5  Ala.  173 '. Ill 

Bean  V.  Boothby 57  Me.  295 67 

Becker  v.  Howard 4  Hun  (N.  Y.),  359  ;  aflF'd  69  N. 

Y.5 98,  1G7,  168 

Beers  V.  Hawley 3  Conn.  110 30 

Belden  v.  Meeker 2  Lans.  471 ;  aff'd  47  N.  Y.  307. . .  42 

Belden  V.  Slade • 26  Hun  (N.  Y.),  635 142,  149 

Belding  V.  Manley 21  Vt.  .550 15,     27 

Bell  V.  Mayor  of  New  York    10  Paige  (N.  Y.),  49 100,  105 

Bell  V.  Shrock 2  B.  Mon.  (Ky.)  29 23,  181 

Bellamy  v.  Sabine 1  De  Gex  &  Jones  (Eng.),  566. . .  96 

Belmont  V.  Coman 22  N.  Y.  438 225,  226 

Benedict  V.  Gilman 4  Paige  (N.  Y.),  58 139,142.  145 

Benedict  v.  Hunt 32  Iowa,  27 235 

Bennett  V.  Bates 94  N.  Y.  354 227,  232 

Bennett  V.  Calhoun  Asso 9  Rich.  Eq.  (S.  C.)  163 82 

Bennett  v.  Solomon 6  Cal.  134, 44 

Bennett  V.  Spillars 7  Tex.  600 215 

Benton  v.'Shreeve 4  Ind.  66 •• 40 

ii 


Xviii  TABLE    OF    CASES. 

PAGE. 

Berry  V.  Bacon 6  Cush.  (Miss.)  318 64 

Bei-tlesv.  Nunan 92N.  Y.  152 114 

Besser  v.'  Hawthorne 3  Oregon  129 142 

Bestv.Brown 25  Hun  (N.  Y.),  223 234 

Bibb  V.  Hawley 59  Ala.  403 45,  174 

Bicknell  V.  Byi-ne 23  How.  (N.  Y.)  486 200 

Bigelowv.  Booth 39  Mich.  622 ....  50 

Bigelow  V.  Bush 6  Paige  (N.  Y.),  343 76,77,  110 

Bigelowv.  Cassedy 26  N.  J.  Eq.  557 261 

Biggerstoff  v.  Loveland 8  Ohio  Rep.  44 117 

Binsse  V.  Paige 1  Keyes  (N.  Y.),  87 224 

Bird  V.  Gardner 10  Mass.  364 102 

Bishop  V.Douglass 25  Wis.  696 193,  228 

Bishop  of  Winchester  v.  Paine 11  Ves.  (Eng.)  194 95 

Bissel  V.  Marine  Co.  of  Chicago 55  Ala.  165 116 

Black  V.  Galway 24  Penn.  St.  18 99,  109,  212 

Blair  &  Co.  v.  Marsh 8  Iowa,  144 44,  84,  154 

Blake  v.  Sanborn 8  Gray  (Mass.),  154 20 

Bloodgood  V.  McVay 9  Port.   (Ala.)  547 25 

Bloomer  V.  Sturges 58  N.Y.  168 30,  155,  176 

Bludwoi-th  V.  Lake 33  Cal.  265 86 

Blydenburgh  V.  Northrop 13  How.  (N.  Y.)  2si 101,  103 

Board  of  S.  v.  Mineral  Point  R.  R. . . .   24  Wis.  93 265 

Body  V.  Jewsen 33  Wis.  402 44 

Bogey  V.  Shute 4  Jones  Eq.  (N.  C.)  174 263 

Boggs  V.  Fowler  &  Hargrave 16  Cal.  559 76,  86,  88 

Bolles  v.  Carli 12  Minn.  113 13 

Bollesv.  Duff 43  N.  Y.  469 34,  35 

Bolton  V.  Ballard 13  Mass.  227 102 

Booth  V.  Conn.  Mutual  Life  Lis.  Co. . .   43  Mich.  299 228 

Borden  v.  Gilbert 13  Wis.  670. 192 

Boston  Bank  v.  Chamberland 15  Mass.  220 130 

Bourlandv.  Kipp 55  111.  376.  ..*. 16 

Bowen  v.  Beck 94  N.  Y.  86 233 

Bowen  v.  Kurtz 37  Iowa,  239 233 

Bowne  V.  Lynde 91  N.  Y.  92 229 

Bradley  v.  Parkhurst 20  Kan.  462 262,  264 

Bradley  V.  Snyder 14  111.  263 89 

Brainard  v.  Cooper 10  N.  Y.  356. . .  139,  142,  143,  145,  149 

150,  151 

Braman  v.  Dowse 12  Cush.  (Mass.)  227 230 

BramhaU  v.  Flood 41  Conn.  68 148 

Breckett  v.  Baum 50  N.  Y.  8 103 

Breit  v.  Yeaton 101  111.  242  125 

Bremer  Co.  Bank  v.  Eastman 34  Iowa,  392 44 


TABLE    OF    CASES.  XIX 

PAGE. 

Brennerv.  Bigelow  8  Kan.  496 110,  117 

Brewer  v.  Maurer 38  Ohio  St.  543. .  228,  238,  244,  247,  253 

Brewer  v.  Staples 3  Sandf.  Ch.  (N.  Y.)  579 38 

Brick  V.  Scott 47  Ind.  299 210,  211 

Briggs  V.  Hannowald 35  Mich.  474 44 

Brindenbecker  V.  Lowell 32  Barb.  (N.  Y.)  9 2(5 

Bristol  V.  Morgan 3  Edw.  Ch.  (N.  Y.)  142 207,  249 

Britton  v.  Hunt 9  Kan.  228 110 

Brooks  V.  Keister 45  Iowa,  303 89 

Brooks  V.  Smyser 48  Penn.  86 57 

Broome  v.  Beers 6  Conn.  207 140 

Broward  v.  Hoeg 15  Fla.  370 120,  257 

Brown  v.  Bates 55  Me.  520 17,     22 

Brown  v.  Brown 1  Barb.  Ch.  (N.  Y.)  353 58 

Brown  v.  Cascaden 43  Iowa,  103 189,  195 

Brown  v.  Cherry 38  How.  (N.  Y.)  352 121 

Brown  v.  Delaney 22  Minn.  349 14 

Brown  v.  Herman 14  Abb.  (N.  Y.)  394 212 

Brown  v.  Johnson 53  Me.  246 176 

Brown  V.  Nevitt 5  Cush.  (Miss.)  801 140 

Brown  V.  Orr 29  Cal.  120 110 

Brown  V.  Snell 6  Fla.  741 12 

Brown  v.  Stead 5  Sim.  (Eng.)535 76,     86 

Brown  v.  Stewart.  .  - 1  Md.  Ch.  Dec.  87 196 

Brown  v.  Tyler 8  Gray  (Mass.),  135 30 

Brown  v.  Volkening 64  N.  Y.  76 256,263,  265 

Bi-owne  v.  Lockhart 10  Sim.  (Eng.)  426 61 

Brundage  v.  D.  &  F.  Missionary  Soc . .   60  Barb.  (N.  Y. )  204 264 

Brundred  v.  Walker 1  Beas.  Ch.  (N.  J.)  140 86 

Brunette  v.  Schettler 21  Wis.  188 28,     29 

Bryce  V.  Bowers 11  Rich.  Eq.  (S.  C.)  41 76,  117 

Buchanan  V.  Monroe 22  Tex.  537 76,     86 

Buck  V.  Fischer 2  Col.  T.  (Eng.)  182 51,     55 

Buckv.Sanders 1  Dana  (Ky.),  189 89 

Bucknerv.  Sessions 27  Ark.  219 74,  134 

Buell  V.  Shuman 28  Ind.  464 210 

Building,  L.  &  S.  Asso.  v.  Camman..   11  N.  J.  Eq.  (3  Stockt.)  382 110 

Bulkley  V.  Chapman 9  Conn.  8 42 

Bull  V.  Titsworth 29  N.  J.  Eq.  73 234 

Buliard  v.  Hinckley 5  Me.  272 14 

Bullard  v.  Leach 27  Vt.  491 148 

Bunn  V.  Vaughan 1  Abb.  App.  Dec.  (N.  Y.)  253. . .      52 

Burdett  v.  Clay 8  B.  Mon.  (Ky.)  295 44 

Burdick  V.  Burdick 20  Wis.  348 192,207,  249 

Burgess  v.  Sturgess 14  Beav.  (Eng.)  440 140 


XX  TABLE    OF    CASES. 

PAGE. 

Burke  v.  Gunney 49  Penn.  518 232 

Bui-kham  v.  Beaver 17  Ind.  367 76 

Burnett  v.  Pratt 22  Pick.  (Mass.)  556 22 

Burnham  v.  De  Bevorse 8  How.  (N.  Y.)  159 86,  89 

Bun- V.  Beers 24  N.  Y.  178 195,  228,  237 

Burr  V.  Burr 10  Paige  (N.  Y.),  20 128 

Burroughs  V.  Reiger 12  How.  (N.  Y.)  172 97 

Buri-ows  V.  Stryker 47  Iowa,  477 183 

Burton  v.  Baxter 7  Blackf.  (Ind.)  297 11,  45,  176 

Burton  v.  Hintrager 18  Iowa,  348 51 

Burton  V.  Lies 21  Cal.  87 102,  110,  117 

Bush  V.  Babbitt 25  Him  (N.  Y.),  214 253 

Bush  V.  Lathrop 22  N.  Y.  535 17,  30 

Bushfield  v.  Meyer 10  Ohio  St.  334 25 

Butler  V.  TomLinson 38  Barb.  (N.  Y.)  641  ;  15  Abb.  (N. 

Y.)  88 97 

Byington  v.  Walsh 11  Iowa,  27 82 

Byles  V.  Tome 39  Md.  461 44 

Cadwallader  v.  Cadwallader 26  Mo.  76 117 

Cady  V.  Sheldon 38  Barb.  (N.  Y.)  103 249 

Cage  V.  Her 5  S.  &  M.  (Miss.)  410 27 

Cain  V.  Hanna 63  Ind.  408 46,  182 

Calhoun  V.  Tullass 35  Ga.  119 16,     45 

CaU  V.  Leisner 23  Me.  25 11 

Calmes  V.  McCrocker 8  Rich.  (S.  C.)  87 101 

Calverly  V.  Phelps 6  Madd.  (Eng.)  229 121 

Calvov.  Davies 73N.Y.  211 36,38,204,228,  231 

Camden  V.  Vail 23  Cal.  633 109 

Camfield  V.  Shearer 49  Mich.  313 224 

Campv.  Small 44  111.  37 16 

Campbell  v.  Bemish 16  Gray  (Mass.),  485 86 

Campbell  V.  Campbell 30  N.  J.  Eq.  415 102 

Campbell  v.  Harmon 43111.  18 130 

Campbell  V.  Johnston  4  Dana  (Ky.),  182 27 

Campbell  v.  Knight 24  Me.  332 101 

Campbell  v.  Savage 33  Ark.  678 134 

Campbell  v.  Smith 71  N.  Y.  26  :  aff'g  S  Hun,  6. .  240,  241 

Carbine  v.  Sebastian 6  Bradw.  (111.)  564 263,  264 

Carleton  v.  Byington 24  Iowa,  173 225 

Carley  V.  Fox 38  Mich.  387 232 

Carll  V.  Butman 7  Me.  102 14,  92,  105 

Carpenter  v.  Black.  Gold  Mining  Co . .   65  N.  Y.  43 63 

Cari)enter  v  Canal  Co 35  Ohio  St.  370 63 

Carpenter  V.  Longan 16  Wall.  (U.  S.)  271 17,     44 


TABLE    OF    CASES.  XXI 

PAGE^ 

Carpenter  V.  O'Dougherty  67  Barb.  (N.  Y.)  397;  2  T.  &  C. 

"  427  ;  aff'd  58  N.  Y.  681 29,     3a 

31,  179 

Carpentier  v.  Brenham 40  Cal.  221 40,  139,  141 

Cai-pentier  v.  Williamson 25  Cal.  154 86,     90' 

Carradine  v.  O'Connor 21  Ala.  573 64 

Carter  V.  Goodwin     3  Ohio  St.  75 103 

Carter  V.  Holahan 92  N.  Y.  498 224 

Cary  V.  Wheeler 14  Wis.  281 103 

Case  V.  Bartholow 21  Kan.  300 157,257 

Case  V.  Price 9  Abb.  (N.  Y.)  Ill 118,  119 

Cashell  V.  Kelly 2  Dru.  &  War.  (Eng.)  181 128 

Cashman  v.  Henry 75  N.  Y.  103 238,  247,  253 

Casper  V.  Hunger 62  Ind.  481 12 

Cassidy  v.  Bigelow 25  N.  J.  Eq.  112 62 

Cassily  v.  Rhodes 12  Ohio  Rep.  88 134 

Catterlin  v.  Armstrong 79  Ind.  514 140 

Cave  V.  Cork 2  Y.  &  C.  C.  C.  (Eng.)  130 51 

Center  V.  P.  &  M.  Bank 22  Ala.  743 44 

Chamberlain  v.  Tyell 3  Mich.  448 263 

Chambers  v.  Goodwin 9  Ves.  (Eng. )  269 173 

Chambers  v.  Nicholson 30  Ind.  349 101 

Champion  V.  Brown 6  Johns.  Ch.  (N.  Y.)  398 53 

Champion  v.  Kille 1  McCarter  (14  N.  J.  Eq.),  229..   148 

Champlin  v.  Foster 7  B.  Mon.  (Ky.)  104 260 

Champlin  v.  Williams 9  Penn.  St.  341 41 

Chandler  v.  Dyer 37  Vt.  345 148 

Chapman  v.  Beardsley 31  Conn.  116 230 

Chapman  v.  Draper 10  How.  (N.  Y.)  367 98 

Chapman  v.  West 17  N.  Y.  125 93,  98,  256 

Chappell  V.  Allen 38  Mo.  Rep.  213 15 

Chappell  V.  Rees 1  De  G.,  M.  &  G.  (Eng.)393.  .125,  126 

Chase  v.  Hubbard 99  Penn.  226 214 

Cherry  V.  Munro 2  Barb.  Ch.  (N.  Y.)  627 38,     76 

Chew  V.  Brumagim 21  N.  J.  Eq.  520 31,  176 

Chicago  Theological  Sem.  v.  Gage ...   103  111.  175 263,  264 

Chickering  v.  Fades 26  111.  507 87,  127 

Chickering  V.  Fullerton 90  III.  520 93 

Childs  V.  Childs 10  Ohio  St.  339 35,     89 

Chilver  v.  Weston 27  N.  J.  Eq.  435 142 

Chiswell  V.  Morris 1  McCarter  (14  N.  J.  Eq.),  101 . .  101 

Cholmondeley  v.  Clinton 2  Jac.  &  W.  (Eng.)  133 79,  125 

Chrisman  v.  Chenoweth 81  Ind.  401 180 

Christie  v.  Herrick 1  Barb.  Ch.  (N.  Y.)  254. . .12,  15,     63 

118,  122,  152,  155,  171,  172,  178 


XXll  TABLE    OF    CASES. 

PAGE. 

Claffin  V.Reese 54  Iowa,  544 249 

Clapp  V.Maxwell 13  Neb.  542 200 

Clark  V.  Makin 95  N.  Y.  346 172,  173 

Clark  V.  Prentice 3  Dana  (Ky.),  469 260 

Clark  V.  Reyburn 8  Wall.  (U.  S.)  318 119,  120,  126 

Clarke  v.  Wentworth 6  Me.  259 13 

Clarkson  v.  Skidmore 46  N.  Y.  297 133.  135,  238 

Clary  v.  Marshall 5  B.  Mon.  (Ky.)  274 141 

Clason  V.  Corley 5  Sandf.  S.  C.  (N.  Y.)  447.. .  .134,  135 

Clearwater  V.  Rose 1  Blackf.  (Ind.)  137 14 

Clerkson  v.  Bowj-er 2  Vern.  (Eng.)  67 51,     54 

Cleveland  v.  Boerum 24  N.  Y.  617 93,  94,  95,  96,  127 

Cleveland  v.  Cohrs 10  Rich.  (S.  C.)  224 43,     66 

Cleveland  v.  Southard 25  Wis.  479 225 

Cline  V.  Inlow 14  Ind.  419 86,     87 

Clow  V.  Derby  Coal  Co 98  Penn.  432 16,     95 

Cobb  V.  Dyer 69  Me.  494 36 

Cobb  V.  Thornton 8  How.  (N.  Y.)  66 198,  200 

Cochran  v.  Goodell 131  Mass.  464 23,  46,  182,  265 

Coe  v.  N.  J.  Midland  Ry 31  N.  J.  Eq.  105 263 

Cokerv.  Smith 63  Ga.  517 86 

Cole  v.  Gourlay 9  Hun  (N.  Y.),  493 131 

Cole  V.  Moffit.' 20  Barb.  (N.  Y.)  18 75,  118 

Cole  V.  Robertson 6  Tex.  356 117 

Colehour  v.  State  Savings  Institution,  90  111.  152 90 

Coleman  v.  Van  Rensselaer 44  How.  (N.  Y.)  368 204 

Coleman  v.  Witherspoon 76  Ind.  285 142 

Coles  V.  Forrest 10  Beav.  (Eng.)  552.  .50,  94,  115,  120 

Collamer  v.  Langdon 29  Vt.  32 51 

Collerd  v.  Huson 34  N.  J.  Eq.  38 26,     27 

Collins  V.  Rowe 1  Abb.  N.  C.  (N.  Y.)  97 224,  232 

Collins  V.  Shirley 1  R.  &  M.  (Eng.)  638 76,  128 

Colton  V.  Smith 11  Pick.  (Mass.)  311 79 

Comely  V   Hendricks 8  Blackf.  (Ind.)  189 263 

Commonwealth  v.  Watmough 12  Penn.  St.  316 66 

Compton  V.  Jones 65  Ind.  117 30,  178 

Comstock  V.  Comstock 24  Mich.  39 261,  263 

Conn  V.  Rhodes 26  Ohio  St.  644 192 

Conde  v.  Shepard 4  How.  (N.  Y.)  75 99,  206 

Conn.  Mut.  Life  Ins.  Co.  v.  Tyler ....    8  Bi.ss.  C.  Ct.  (U.  S.)  369 201 

Conover  v.  Porter 14  Ohio  St.  450 KH 

Conwell  V.  McCowan 53  111.  363 41 

Cooley  v.  Hobart S  Iowa,  358 192 

Coolidge  V.  Smith 129  Mass.  554 253 

Cooper  V.  Martin 1  Dana  (Ky.),  25 86,  141 


TABLE    OF    CASES.  Xxiii 

PAGE. 

Cooper  V.  Newland 17  Abb.  (N.  Y.)  342 42 

Corbett  v.  Waterman 11  Iowa,  87 228,  232 

Cord  V.  Hirsch 17  Wis.  403 86,     91 

Cormerais  v.  Genella 22  Cal.  116 - 192,  200 

Corn  E.  Ins.  Co.  v.  Babcock 42  N.  Y.  613 212 

Cornell  v.  Prescott 2  Barb.  (N.  Y.)  16 38,  40,     79 

Cornell  v.  Woodruff. 77  N.  Y.  203 201 

Corning-  v.  Smith 6  N.  Y.  82 259,  263,  264 

Cornwell  v.  McCowan 53  111.  363 41 

Cory  V.  Wheeler 14  Wis.  281 102 

Coster  V.  Clark 3  Edw.  Ch.  (N.  Y.)  440 89 

Cotton  V.  Blocker 6  Fla.  1 25 

County  of  Dubuque  v.  Koch 17  Iowa,  229 ]  89 

County  of  Floyd  v.  Cheney 57  Iowa,  160 141 

Cox  V.  Wheeler 7  Paige  (N.  Y.),  248 38 

Cox  V.  Vickers 35  Ind.  27 74,  134 

Craig  V.  Parkis 40  N.  Y.  181 249,  250 

Crane  v.  Turner 67  N.  Y.  437 17 

Crawfoi-d  v.  Edwards 33  Mich.  354 231 

Crawford  v.  Taylor 42  Iowa,  260 141 

Crenshaw  v.  Thackston 14  S.  C.  437 76,     79 

Critcher  v.  Walker 1  Murphy  (N.  C),  488 204 

Crogan  v.  Minor 53  Cal.  15 263 

Crooke  v.  O'Higgins 14  How.  (N.  Y.)  154. . .  75,  76,  78,     84 

Crooker  v.  Jewell 31  Me.  306 12 

Cropper  v.  Mellersh 1  N.  S.  Jur.  (Eng.)  299 120 

Cross  V.  De  Valle 1  Wall.  (U.  S.)  5 194 

Crow  &  Co.  V.  Vance 4  Clarke  (Iowa),  434 44,  252 

Crowell  V.  Currier 27  N.  J.  Eq.  152 230,  238,  246 

Crowell  V.  Hospital 27  N.  J.  Eq.  650. . .  230,  233,  237,  246 

Crum  V.  Cotting 22  Iowa,  411 168 

Crutchfield  v.  Coke 6  J.  J.  Mar.  (Ky.)  90 192 

Cryst  V.  Ci-yst Smith  (Ind.),  370 51,     55 

Culluni  V.  Batre 2  Ala.  415 140 

Cullum  V.  Erwin 4  Ala.  452 25 

Culver  V.  Badger 29  N.  J.  Eq.  74 234,  253 

Culver  V.  Harper 27  Ohio  St.  464 103 

Calver  v.  Rogers 28  Cal.  520 200 

Cundiff  v.  Brokaw 7  111.  App.  147 219 

Curtis  V.  Bush 39  Barb.  (N.  Y.)  661 235 

Curtis  V.  Hitchcock 10  Paige  (N.  Y.),  399 93 

Curtis  V.  Trip Clarke  Ch.  (N.  Y.)  317 203 

Curtis  V.  Tyler 9  Paige  (N.  Y.),  435 207,236,  248 

250,  252 
dishing  v.  Ayer 25  Me.  383 71 


XXIV  TABLE    OF    CASES. 

PAGE. 

Cutterv.  Jones 52111.84 88,     89 

Cutis  V.  York  Manuf.  Co 14  Me.  326 30,  176 

Dakin  V.  Insurance  Co 77  N.  Y.  601 98 

Daltonv.  Smith 86  N.  Y.  176 30,  176 

Dalyv.  BurcheU 13  Abb.  N.  S.  (N.  Y.")  268. .  ..76,  112 

Danforth  V.  Coleman 23  Wis.  528 201 

Daniels  V.  Henderson 49  Cal.  245 90,     97 

Daniels  v  Henderson 5  Fla.  452 101 

Daniels  V.  Moses 12  S.  C.  130 218 

Darlington  v.  Effey 13  Iowa,  177 117 

Darrow  v.  Scullin 19  Kan.  57 201 

Darstv.  Bates 95111.  493 37 

Davenport  Plow  Co.  v.  Mervis 10  Neb.  317 205 

Davis  V.  Bechstein 69  N.  Y.  440 17,     91 

Davis  V.  Evans 5  IredeU  (N.  C),  525 89 

Davis  V.  Hemingway 29  Vt.  438 62,  183 

Day  V.  Patterson IS  Ind.  114 87 

Day  V.  Wetherby 29  Wis.  363 120 

Dayton  V.  Dayton 7  Bradw.  (111.)  136 51,     52 

Dawson  v.  Danbury  Bank 15  Mich.  489 257,  265 

Deckerv.  Boice 83  N.  Y.  215 ...46,  182 

Dedrick  v.  Barber..  , 44  Mich.  19 181 

De  Greifl"  v.  Wilson 30  N.  J.  Eq.  435. . 19 

Delabere  v.  Norwood 3  Sw.  (Eng.)  144 140,  261 

Deland  v.  Mershon 7  Clarke  (Iowa),  70 75,  206 

Delaphine  v.  Lewis,  Gov.  etc 19  Wis.  476 66,  76,  141 

Delaware  Bank  V.  Jarv-is 20  N.  Y.  226 174 

De  Leon  v.  Higuera 15  Cal.  483 86 

Delespine  v.  CampbeU 45  Tex.  268 134 

Demorest  v.  Berry ICE.  Green  (16  N.  J.  Eq.),  481     47 

Demorest  v.  Wynkoop 3  Johns.  Ch.  (N.  Y.)  129 61 

Dempster  V.  West 69  111.  613 13 

Denby  V.  Mellgrew 58  Ala.  147 14,  4.5,  174 

Denison  V.  League 16  Tex.  399 Ill,  180 

Denton  V.  Cole 30  N.  J.  Eq.  244 14 

Denton  V.  Nanny 8  Barb.  (N.  Y.)  618 100,  101,  105 

De  Saussure  v.  BoUman 7  Rich.  (S.  C.)  329 147 

Deuster  v.  McCamus 14  Wis.  307 140 

Devlin  v.  Murphy 56  How.  (N.  Y.)  326 243,  244 

Dewey  v.  Van  Deusen 4  Pick.  (Mass.)  19 51 

Deyermand  V.  Chamberlain 88  N.  Y.  658 234 

Dial  V.  RejTiolds 96  U.  S.  340 263 

Diasv.  Bouchard 10  Paige  (N.  Y.),  446 236 

Dick  V.  Mawry 9  S.  &  M.  (Miss.)  448 27 


TABLE    OF    CASES.  XXV 

PAGE. 

Dingeldein  v.  Third  Ave.  R.  R.  Co..   37  N.  Y.  575 225,  232 

Dings  V.  Pai-shall 7  Hun  (N.  Y.),  522 40 

Dixtield  V.  Newton 41  Me.  221 14 

Dixon  V.  Cuyler 27  Ga.  248 51,117 

Doctor  V.  Smith ^ 16  Hun  (N.  Y.),  245 258 

Dodd  V.  Neilson 90  N.  Y.  243 112,  116,  120 

Doe  ex.  Duval  v.  McLoskey 1  Ala.  708 44,  127 

Dolman  v.  Cook 1  McCarter  (N.  J.  Eq.),  56 12 

Donnelly  v.  Husch 15  Iowa,  99 133,  139 

Doody  v.  Hig^ins 9  Hare  (Eng.),  32 123 

Dooley  V.  Villalonga 61  Ala.  129 116 

Dooliltle  V.  Lewis 7  Johns.  Ch.  (N.  Y.)  45 58,     61 

Dorkray  v.  Noble 8  Me.  278 14 

Dorsey  v.  Thompson 37  Md.  25 64,  183 

Doss  V.  Ditmars 70  Ind.  451 25 

Douglass  v.  Bishop 27  Iowa,  214 79,     88 

Douglass  V.  Cross 56  How.  (N.  Y.)  330 232 

Douglass  V.  Durin 51  Me.  121 12,     54 

Douglass  V.  Wells 18  Hun  (N.  Y),  88 243,  244,  245 

Downer  v.  Fox 20  Vt.  388 148 

Downward  v.  Groff..... 40  Iowa,  597 134 

Drayton  v.  Marshall Rice's  Eq.  (S.  C.)  373 214 

Drinan  V.  Nichols 115  Mass.  353 86 

Drury  v.  Clark 16  How.  (N.  Y.)  424. . .  76,  77,  228,  230 

Drury  v.  Tremont  Imp.  Co 13  Allen  (Mass.),  168 230 

Duck  V.Wilson 19  Ind.  190 192 

Ducker  v.  Belt 3  Md.  Ch.  13 145,  260 

Dudley  v.  Cadwell 19  Conn.  228 43 

Dungan  v.  Amer.  Life  Ins.  Co 52  Penn.  253 46 

Dunkley  v.  Van  Buren 3  Johns.  Ch.  (N.  Y.)  330 187,  188 

189,  191 

Dunlap  V.  Wilson 32  111.  517 91 

Dunn  V.  Raley.. 58  Mo.  Rep.  134 260 

Dunning  V.  Leavitt 85  N.  Y.  301..  .235,  237,  238,  239,  248 

Durand  v.  Isaacks 4  McCord  Law  (S.  C),  54 86 

Duval  &  Doe  v.  McCloskey 1  Ala.  708 110 

Dwyer  v.  Garlough 31  Ohio  St.  158 44,  127 

Eades  V.  Harris 1  Y.  &  C.  (Eng.)  234 , 128 

Eagle  Fire  Ins.  Co.  v.  Cammet 2  Edw.  Ch.  (N.  Y.)  127 124,  126 

Eagle  Fire  Ins.  Co.  v.  Lent 6  Paige  (N.  Y.),  635  ... .  256,  263,  264 

Earl  v.  David 20  Hun  (N.  Y.),  527  ;  aff'd  86  N. 

Y.  634 190 

■SEarle  V.  Barnard 22  How.  (N.  Y.)  437 97,  101 

Eaton  V.  Nason 47  Me.  132 99,  212 


XXvi  TABLE    OF    CASES. 

PAGE. 

Eaton  V.  Simonds 14  Pick.  (Mass.)  98 102 

Eckerson  V.  Vollmer 11  How.  (N.  Y.)  42 106 

Edwards  v.  Sanders 6  Rich.  (S.  C.)  316 215 

Eldrid^e  v.  Eldridge 14  N.  J.  Eq.  195 101 

Eleventh  Ward  Savings  Bank  v.  Hay,  55  How.  (N.  Y.)  444 182 

Ellis  V.  Guaras 2  Ch.  Ca.  (Eng.)  50 52 

Ellis  V.  Kenyon 25  Ind.  134 99 

Ellis  V.  Sisson 96  111.  105 50 

Ellsworth  V.  Lockwood 42  N.  Y.  89 40 

Elmendorf  v.  Lockwood 4  Lans.  (N.  Y.)  393 104 

Ely  v.  Ely 6  Gray  (Mass.),  439 1 96 

Ely  V.  McKnight 30  How.  (N.  Y.)  97 233 

Emigt.  Indust.  Sav.  Bk.  v.  Goldman,  75  N.  Y.  127 2.56,  2.58,  259 

Emory  V.  Keighan 94  111.543 43 

English  V.  Register 7  Ga.  387 45 

Englund  V.  Lewis 25  Cal.  337 195,  200 

Equitable  Life  Ins.  Co.  v.  Stevens. . .   63  N.  Y.  341 189.  190,  194 

Erickson  V.  Rafferty 79  111.  210 91 

Erwin  v.  Ferguson 5  Ala.  158 20,  110,  116 

Eslava  V.  Le  Pretre 21  Ala.  .504 130 

Etheridge  v.  Vernoy 71  N.  C.  184 52,  101,  108,  172 

Evansville,  Peo.  S.  Bk.  of,  v.  Finney,  63  Ind.  460 25 

Evans  v.  McLucas 12  S.  C.  56 : .   260 

Ewing  v.  Ainsworth 53  111.  464 141,  149 

Eyster  v..  Gaff. 91  U.  S.  521 95,  12^   128 

Faesiv.  Goetz 15  Wis.  231 192 

Fairchilds  v.  Lynch 42  Supr.  Ct.  (N.  Y.)  26".... 232,  243 

Fairman  v.  Farmer 4  Port.  (Ind.)  436 196 

Fallon  v.  Butler 21  Cal.  24 117,  215 

Farmers'  L.  &  T.  Co.  v.  Walworth. . .  1  N.  Y.  433 36 

Farrar  v.  Kloke 10  Neb.  373 257 

Farwellv.  Murphy 2  Wis.  .533 140 

Faulks  V.  Dimock 27  N.  J.  Eq.  65 13 

Fay  V.  Cheney 14  Pick.  (Mass.)  399 51 

Feiden  v.  Murphy 2  Rich.  Eq.  (S.  C.)  58 87,  145 

Fell  V.Brown 2  Bro.  C.  C.  (Eng.)  276 74 

Fenton  v.  Hughes 7  Ves.   (Eng. )  287 173 

Fenton  v.  Lord 128  Mass.  466 228,  230 

Fei-guson  v.  Ferguson    2  N.  Y.  360 33 

Ferguson  v.  Smith 2  John.  Ch.  (N.  Y.)  139 106 

Ferris  v.  Crawford 2'Denio  (N.  Y.),  .595 38 

Field  V.  Maghee 5  Paige  (N.  Y.).  539 49 

Figart  v.  Halderman 75  Ind.  564 238 

Finley  V.  Bank  of  U.  S 11  Wheat.  (U.  S.)  304 260 


TABLE    OF    CASES.  XXVll 

PAGE. 

F'st  Nat.  Bk.  of  Dubuque  v.  Carpenter,  41  Iowa,  518 251 

Fisher  v.  Meister 24  Mich.  447 12 

Fishwick  v.  Lowe 1  Cox  Cas.  in  Eq.  (Eng.)  411 125 

Fiske  v.Tolman 124  Mass.  254 225 

Fithian  v.  Corwin 17  Ohio  St.  119 176 

Fithian  v.  Monks 43  Mo.  Rep.  502 191,  192,  228 

Fitzgerakl  v.  Barker 70  Mo.  Rep.  685 238 

FitzgeraUi  V.  Quann 1  Civ.  Pro.  Rep.  (N.  Y.)  278.. . .  108 

Fitzhugh  V.  McPherson 3  Gill  (Md.),  408 47 

Fitzsimons  V.  Harrington 1  Civ.  Pro.  Rep.   (N.  Y.)  360.. . .  108 

F.  &  M.  Bk.  of  Milwaukee  v.  Luther. .  14  Wis.  96 159 

Flagg  V.  Geltmacher 98  111.  293 247 

Flagg  V.  Johnston 39  Ga.  26 55,  56 

Flagg  V.  Munger 9  N.  Y.  483 66,  234 

Flagg  V.  Thurber 14  Barb.  (N.  Y.)  196 231 

Fleischauer  V.  Doellner ,58  How.  (N.  Y.)  190 243,  244 

Fleishhauer  v.  Doellner 60  How.  (N.  Y.)  438 201 

Fleming  v.  Holt 12  W.  Va.  143 62 

Fleming  v.  Kerkendall 31  Ohio  St.  568 192 

Fleming  v.  Sitton 1  Dev.  &  B.  Eq.  (N.  C.)  623 188 

Fletcher  v.  Cary 103  Mass.  475 134 

Fletcher  V.  Holmer 32  Ind.  497 103,111,  204 

Fhess  Y.  Buckley 90  N.  Y.  286 143,  214,  220,  221 

Flinn  v.  Powers 36  N.  Y.  289 214 

Flower  v.  Elwood 66  111.  438 25 

Fluck  v.  Hager 51  Penn.  459 249,  251 

Flynn  v.  Powers 35  How.  (N.  Y.)  279  ;  aff'd  36  id. 

289 253 

Fogal  v.  Pirro 10  Bosw.  (N.  Y.)  100  91,  110 

Follansbee  v.  Johnson 28  Minn.  311 228 

Fond  du  Lac  Harrow  Co.  v.  Haskins,  51  Wis.  135 181,  205 

Foote  v.  Lathrop.  .; 53  Barb.  (N.  Y.)  183 106 

Foote  V.  Sprague 13  Kan.  1.'5 194 

Foster  v.  Deacon 6  Madd.  (Eng.)  59 50,  94 

Foster  V.  Hickox 38  Wis.  408 103,  110 

Fox  V.  Pratt 27  Ohio  St.  512 103 

Franklyn  v.  Fern Barn.  Ch.  (Eng.)  folio  30,  32 ... .  128 

Franklyn  v.  Hayward 61  How.  (N.  Y.)  43.. 12,  34,  139,  143 

Freak  v.  Hearsey 1  Ch.  Ca.  (Eng.)  51 52 

Freedinan  S.  &  T.  Co.  v.  Dodge 3  McArthur  (D.  C),  529 192 

Freeland  v.  Freeland.    102  Mass.  475 127 

Freeman  v.  Auld 44  N.  Y.  50 235,  236 

Freeman  v.  Scotield 16  N.  J.  E(i.  28 21,  62 

Frost  v.  Frost 3  Sandf.  Ch.  (N.  Y.)  188 80 

Fro.st  V.  Koon 30  N.  Y.  428 256,  258,  263 


XXVIU  TABLE    OF    CASES. 

PAGE. 

Frost  V.  Yonkers  Savings  Bank 70  N.  Y.  553 259 

Fuller  V.  Lamar 53  Iowa,  477 234 

Fuller  V.  Scribner 16  Hun  (N.  Y.),  130  ;  aftM  76  N. 

Y.  190 93,  97,  159,  160 

Fuller  V.  Van  Geesen 4  Hill  (N.  Y.).  171 134 

Funk  V.  McReynolds 33  111.  481 25 

Furbushv.  Goodwin 5  Fost.  (26  N.  H.)  425 15 

Furnas  v.  Drugin 119  Mass.  500 230 

Gable  v.  Scarlett 56  Md.  169 16 

Gage  V.  Board  of  Directors 8  Bradw.  (111.)  410 263 

Gagev.  Brewster 31  N.  Y.  218...  139,  141,  142,  143,  149 

Gage  V.  Perry 93  111.  176 261,  263 

Gagev.  Ward 25  Me.  101 101 

Gaines  v.  Walker 16  Ind.  361 145 

Gale  V.  Battin 12  Minn.  287 13 

Galway  v.  Fullerton 17  N.  J.  Eq.  389 14,     99 

Gardner  V.  Brown 21  Wall.  (U.  S.)  36 119,  127 

Gardner  V.  Lansing 28  Hun  (N.  Y.),  413 147 

Gargon  v.  Grimes 47  Iowa,  180 260 

Garnsey  V.  Rogers 47  N.  Y.  233... 234,  235,  236,  240,  243 

Garrard  v.  Lord  Louderdale 3  Sim.  (Eng.)  1 ]  23 

Garrett  v.  Puckett 15  Ind.  485 44,  172 

Gaylord  v.  Knapp 15  Hun  (N.  Y.),  87 204 

Gebhart  v.  Hadley 19  Ind.  270 211 

George  v.  Cooper 15  W.  Va.  666 Ill 

George  v.  Woodwar.l 40  Vt.  672 28 

Gerber  v.  Sharp 72  Ind.  554 25,     37 

Ger.  Savings  Bank  v.  Muller 10  Wk.  Dig.  (N.  Y.)  67 163 

Gibbes  V.  Holmes 10  Rich.  Eq.  (S.  C.)  484 55,  117 

Gibbs  v.  Queen  Ins.  Co 63  N.  Y.  131 199 

Gibson  V.  Bailey 9  N.  H.  168 51 

Gibson  V.  Crehore 5  Pick.  (Mass.)  157 105 

Giddings  v.  Barney 31  Ohio  St.  80 194,  195 

Gies  V.  Green 42  Mich.  107 200 

Giftbrd  V.  Hort 1  Sch.  &  Lef.  (Eng.)  386 125 

Gifford  V.  Workman 15  Iowa,  34 77 

Gihon  V.  Belleville  Co 7  N.  J.  Eq.  (3  Halst.)  531 261 

Gilbert  v.  Gilbert 39  Iowa,  657 35 

Gilbert  v.  Maggard 1  Scam.  (111.)  471 102 

Gilbert  v.  Sanderson 56  Iowa,  349 244 

Girard  Trust  Co.  v.  Stewart 86  Penn.  89 225 

Givens'  Adm'rs  v.  Davenpoi-t 8  Tex.  451 112 

Glacius  V.  Fogel 88  N.  Y.  439 214,  217,  218 

Glass  V.  Warnick ;40jPenn.  140 99 


TABLE    OF    CASES.  XXIX 

PAGE. 

Gleises  V.  Maignan 3  La.  530 17,     19 

Globe  Ins.  Co.  V.  Lansing 5  Cow.  (N.  Y.)  380 187,188,  189 

Globe  Marble  Mills  Co.  v.  Quinn 76  N.  Y.  23 133,  135 

Gobe  V.  Carlisle 2  Vern.  (Eng.)67 51,     54 

Goldsmid  V.  Stonehewer 9  Hare   Append.   (Eng.)   39;  17 

Jur.  (Eng.)  199 62,  120 

Goodall  V.  Mopley 45  Ind.  355 23 

Goodenow  v.  Ewer 16  Cal.  461 34,     86 

Goodman  v.  White 26  Conn.  320 140 

Gortside  V.  Outlay 58  111.  210 134 

Gould  V.  Newman 6  Mass.  239 12 

Gould  V.  Wheeler 28  N.   J.  Eq.  541 141 

Gore  V.  Harris 15  Jur.  (Eng.)  761 123 

Gove  V.  Stackpole 1  Dow.  (Eng.)  18 125,  126 

Gowen  v.  Winchester 33  Iowa,  303 141 

Gower  V.  Howe 20  Ind.  396 14,  44,  172 

Grable  v.  McCulluch 27  Ind.  472 105 

Grace  V.Hunt 1  Cooke '(Tenn.),  344..  .  - 50 

Graham  v.  Long 65  Penn.  383 99 

Graham  v.  Newman 21  Ala.  497 16,     45 

Graham's  Ex'rs  v.  Carter 2  Hen.  &  M.  (Va.)  6 115 

Graham  v.  Vinning 1  Tex.  639 117 

Grandin  V.  Hernandez 29  Hun  (N.  Y.),  399 92 

Granger  v.  Crouch 86  N.  Y.  494 26,  27,     46 

Grant  v.  Duane 9  Johns.  Rep.  (N.  Y.)  591.. ..118,  123 

Grant  V.  Griswold 82  N.  Y.  569 207,  252 

Grant  V.  Ludlow 8  Ohio  St.  2 173 

Grape  Sugar  Co.  v.  Whitin 69  N.  Y.  328 133 

Gratton  v.  Wiggins 23  Cal.  16 14,  26,  181 

Gray  V.  Toomer 5  Rich.  Law  (S.  C),  261 194,  214 

Graydon  v.  Church 4  Mich.  646 30,  177 

Green  V.  Dixon 9  Wis.  530 86,     92 

Gj-een  v.  Marble 37  Iowa,  95 14,     37 

Greene  V.  Warnick 64  N.  Y.  220 16,  45,  182 

Gregg  V.  Jones 5  Heisk.  (Tenn.)  443 101 

Greither  v.  Alexander 15  Iowa,  470 84 

Griffin  v.  Lovell 42  Miss.  402 51 

Grimmel  v.  Warner 21  Iowa,  11 51,  54,  192 

Griswold  V.  Fowler 6  Abb.  (N.  Y.)  113 ... .  73,  76,  78,     84 

Groff  V.  Morehouse 51*N.  Y.  503 146 

Guion  V.  Knapp 6  Paige  (N.  Y.),  43 207 

Hackensack  Water  Co.  v.  De  Kay. ..  36  N.  J.  Eq.  548 62,  64,  183 

Hagan  V.  Walker 14  How.  (U.  S.)  29 257,  260 

Haines  V.  Beach 3  Johns.  Ch.  (N.  Y.)  466....  145,  150 


XXX  TABLE    OF    CASES. 

PAGE 

Haley  v.  Bennett 5  Port.  (Ala.)  452 92 

Hall  V.  Hig-gins 19  Ala.  200 86,  89 

Hall  V.  Musler 1  Disney  (Ohio),  36 117 

Hall  V.Nelson 14  How.   (N.  Y.)  32  ;   23  Barb. 

(N.  Y.)  88. . .  .74,  75,  86,  90,  91,  97 

Hallock  V.  Smith 4  Johns.  Ch.  (N.  Y.)  649 82,  89 

Halsey  V.  Reed 9  Paige  (N.  Y.),  446 38 

Hamilton  v.  Dobbs 19  N.  J.  Eq.  227 41 

Hamilton  v.  Lubukee 51  111.  415 42,  44 

Hamlin  v.  McCahill Clarke  Ch.  (N.  Y. )  249 . .  256,  259,  261 

Hammond  v.  Peiry 38  Iowa,  217 79 

Hancock  v.  Hancock 22  N.  Y.  568 33,  182,  256,  258 

Hand  v.  Kennedy 45  Siipr.  Ct.  (N.  Y.)  385 ;  83  N.  Y. 

149 .195,  197,  228,  .237 

Handcock  V.  Shaen Coll.  P.  C.  (Eng.)  22 126 

Hanman  v.  Riley 9  Hare  App.   (Eng.)  39  ;  17  Jur. 

(Eng.)99 120 

Hansen  v.  Gregg 7  Tex.  225 20 

Harlem  Sav.  B'k  v.  Mickelsburgh. . .   57  How.  (N.  Y.)  106 229,  249 

Hari-ington  v.  Slade 22  Barb.  (N.  Y.)  161 97 

Harris  V.  Cornell, 80  III.  54 127 

Harris  v.  Harlan 14  Intl.  439 25,  181 

Harris  v.  Hooper 50  Md.  537 145 

Hari-ison  v.  Brown 16  Cal.  287 109 

Hartley  v.  Harrison 24  N.  Y.  170 236,  243 

Hartley  v.  Tatham 1  Robt.  (N.  Y.)  246 236 

Hartshorne  v.  Hartshorne 1  Greene  Ch.  (N.  J. )  349 102 

Hartwell  v.  Blocker 6  Ala.  581 23 

Harvey  V.Pius 14  111.217 110 

Harvey's  Adm's  v.  Thornton 14  111.  217 74 

Harwood  v.  M^ary's 8  Cal.  580 -113 

Haskell  v.  Bailey 22  Conn.  573 10 

Haskins  v.  Hawkes 108  Mass.  379 54 

Hasselman  v.  McKernan 50  Ind.  441 -  .  140 

Hatch  V.  Kimball 14  Me.  91 79 

Hawkins  v.  Hill 15  Cal.  499 47 

Hayden  v.  Snow 9  Biss.  C.  Ct.  (U.  S.)  511 234 

Hayes  v.  Doi-sey 5  Md.  Rep.  99 62,  183 

Hayes  v.  Fray 54  "Wis.  503 61 

Hayes  V.  Ward '..    4  Johns.  Ch.  (N.  Y.)  123 40 

Haynes  v.  Wellington 25  Me.  458 23 

Hays  V.  G.  G.  L.  &  C.  Co 29  Ohio  St.  330 62 

Hays  V.  Lewis 21  Wis.  663 65,  183 

Hay  ward  v.  Stearns 39  Cal.  58 140 

Heath  v.  Hall 60  111.   344 13 


TABLE    OF    CASES.  XXXI 

PAGE . 

Hebron  Society  v.  Schoen 60  How.  (N.  Y.)  185 116 

Held  V.  Vreeland 30  N.  J.  Eq.  591 225 

Heig-hway  v.  Pendleton 15  Ohio  Rep.  735 117 

Heim  v.  Vogel 69  Mo.  Rep.  529 228 

Hekla  Fire  Ins.  Co.  V.  Morrison 56  Wis.  133 261 

Hemphill  v.  Ross 66  N.  C.  477 89,  134 

Henderson  v.  Herrod 10  S.  &  M.  (Miss.)  631 27 

Henslay  v.  Whiffin 54  Iowa,  555 181 

Herrick  V.  Saffery 7  Sim.  (Eng-.)  317 125,  128 

HeH-ing-  v.  Woodhull 29  111.  92 44 

Herrington  v.  McCollum 73  111.  476 25 

Hess  V.  Feldkamp 2  Disney  (Ohio),  332 ...   140 

Heuisler  v.  Nickum 38  Md.  270 145 

Heyman  v.  Lowell 23  Cal.  106 86 

Haywood  v.  Hartshorn 55  N.  H.  476 58 

Hibernian  Savings  Society  v.  Herbert,  53  Cal.  375 112 

Hichens  V.  Kelly 2  Sm.  &  G.  (Eng.)  264 54,     64 

Higgs  V.  Hanson 13  Nev.  356 23 

Hildreth  v.  Jones 13  Mass.  525 102 

Hile  V.  Davidson 20  N.  J.  Eq.  228 235 

Hill  V.  Boyland 40  Miss.  618 , 54 

Hill  V.  Edmonds 5  De  G.  &  S.  (Eng.)  603 99 

Hill  V.  Meeker 23  Conn.  594 32 

Hills  V.  Eliot 12  Mass.  26 12 

Hilton  V.  Lathrop 46  Me.  297 54,  109 

Himestreet  v.  Winnie 10  Iowa,  430 139 

Hinchman  v.  Stiles 1  Stockt.  Ch.  (N.  J.)  361 102 

Hinson  v.  Adrian 86  N.  C.  61 140,  145 

Hirsch  v.  Livingston 3  Hun  (N.  Y.),  9 133,  134,  135 

Hitchcock's  Heirs  v.  U.  S.  Bk.  of  Penn.  7  Ala.  386 62 

Ho'oartv.  Abbott 2  P.  Wms.  (Eng.)  642.. .51,  171,  177 

Hodgen  v.  Guttery 58  111.  421 140,  141 

Hodgson  v.  Treat 7  Wis.  263 86 

Hoffman  v.  Risk 58  Ind.  113 38 

Holcomb  V.  Holconib 2  Barb.  (N.  Y.)  20 256,  258,  259 

Holdridge  v.  Sweet 23  Ind.  118 44,45,  174 

Holland  V.  Baker 3  Hare  (Eng. ),  68 123 

Hollis  V.  Francois 5  Tex.  195 159 

Holmes  v.  Bybee 34  Ind.  262 140 

Holmes  V.  French 70' Me.  341 16 

Holmes  v.  McGin'y 44  Miss.  94 44 

Horn.  Med.  Life  Ins.  Co.  v.  Sixbury . .    17  Hun  (N.  Y.),  428 144 

Hom.  M.  Life  Lis.  Co.  v.  Marshall...   32  N.  J.  Eq.  103 36 

Honslow  v.  Stringham 21  Iowa,  36 77 

Hopkins  v.  Hopkins 1  Atk.  (Eng.)  .581 125 


XXXll  TABLE    OF    CASES. 

PAGE. 

Hopkins  v.  Ward 12  B.  Mon.  (Ky.)  185 17,     18 

Hoppock  V.  Ramsey 28  N.  J.  Eq.  414 265 

Horn  V.  Jones 28  Cal.  194 76,  86,     93 

Hornby  V.  Cramer 12  How.  (N.  Y.)490 75,  118 

Horstman  v.  Gerker 49  Penn.  282 12 

Horton  V.  Ingersoll 13  Mich.  409 261,  264 

Hosford  V.  Johnson 74  Ind.  479 140 

Hoskins  v.  Hutchings  37  Ind.  324 103 

Hotchkiss  V.  Clifton  Air  Cure 4  Keyes  (N.  Y.),  120 257 

Hough  V.  Osborn 7  Ind.  140 14,     25 

Houghton  V.  Kneeland 7  Wis.  244 90 

Houghton  V.  Mariner 7  Wis.  244 Ill,  116 

Houston  V.  Stringham 21  Iowa,  36 77 

Hovey  V.  Hill 3  Lan.s.  (N.  Y.)  167 159 

How  V.  Vigures 1  Rep.  in  Ch.  (Eng.)  32 55 

Howe  V.  Dibble 45  Ind.  120 22,  180 

Hoy  V.  Bramhall 19  N.  J.  Eq.  74,563 232 

Hoysradt  v.  Holland .    50  N.  H.  433 38 

Hoyt  V.  Martense 16  N.  Y.  231 28,  30,  212 

Hubbard  v.  Harrison 38  Ind.  323 42 

Hubbell  V.  Sibley 5  Lans.  (N.  Y.)  51 . . .  10,  101,  107,  145 

Hudnit  V.  Nash 16  N.  J.  Eq.  550 257,  260 

Huebsch  v.  Scheel 81  111.  281 241 

Huggins  V.  Hall 10  Ala.  283 52 

Hughes  V.  Johnson , 38  Ark.  285 176 

Hughes  V.  Pattei-son 23  La.  Ann.  679 74 

Hulfish  V.  O'Brien 20  N.  J.  Eq.'230 235 

Hull  V.  Alexander 26  Iowa  Rep.  569 225 

Hull  V.  Lyon 27  Mo.  Rep.  570 79,     96 

Humphreys  v.  Morton 100  111.  592 25,     26 

Hunsecker  v.  Thomas 89  Penn.  154 117 

Hunsucker  v.  Smith 49  Ind.  1 14 11,     51 

Himtv.  Acre 28  Ala.  580 110,  113,  115 

Hunt  V.  Chapman , 51  N.  Y.  555 203 

Hunt  V.  Dohrs 39  Cal.  304 192,  200 

Hunt  V.  Hunt 17  Pick.  (Mass.)  118 96 

Hunt  V.  Lewin 4  Stew.  &  P.  (Ala.)  138..  189,  192,  204 

Huntv.  Purdy 82  N.  Y.  486 207,  249,  252 

Hunt  V.  Stiles 10  N.  H.  466 24,     25 

Hunter  V.  Levan 11  Cal.  11 30 

Hunter  v.  Macklew 5  Hare  (Eng.),  238 74 

Huntington  v.  Smith 4  Conn.  237 43.     44 

Hurck  V.  Erskine 45  Mo.  Rep.  484 24.25,     26 

Hurd  V.  Case 32  111.  45 89 

Hurd  V.  Coleman 42  Me.  182 '  16 


TABLE    OF    CASES.  XXXlll 

PAGE, 

Hiirtt  V.  Crane 36  Md.  29 107 

Huston  V.  Neil 41  Ind.  504 101 

Hutchinson  v.  Crane 100  HI.  269 13 

Huyler  v.  Atwood 26  N.  J.   Eq.  504 231,  253 

Hyman  v.  Devereux 63  N.  C.  624 44 

Iglehart  v.  Bierce 36  HI.  133 49,  65 

Ingersoll  v.   Mangam 84  N.  Y.  622 131 

Ingraham  v.  Disborough 47  N.  Y.  421 16 

Insurance  Co.  v.  Addicks .   12  Phila.  (Pa.)  490 ..  - 225 

Insurance  Co.  v.  Bailey 3  Edw.  Ch.  (N.  Y.)  417 83 

Iowa  Co.  V.  Beeson 55  Iowa,  262 149 

Iowa  County  v.  Mineral  Point  R.  R..   24  "Wis.  93 166 

Iowa  Loan  and  Trust  Co.  v.  King 58  Iowa,  598 125 

Ireson  v.  Denn 2  Cox  (Eng.),  425 81 

Irish  V.  Sharp 89  III.  261 16,  32 

Jackson  v.  Blodget  . .    5  Cow.  (N.  Y.)  206 42 

Jackson  v.  Losee 4  Sandf.  Ch.  (N.  Y.)  381 93 

James  V.  Fields 5<Heisk  (Tenn.),  394 101 

Janinski  v.  Heidelberg 21  Hun  (N.  Y.),  439 107 

Jarman  V.  "Wi-swall   24  N.  J.  Eq.  267 193,247,  249 

Jeneson  v.  Jeneson 66  Ind.  260 86,  163 

Jenkins  v.  Smith 4  Mete.  (Ky.)  380 23 

Jerome  v.  McCarter 94  U.  S.  734 257,  260,  261 

Jesterv.  Sterling 25  Hun  (N.  Y.),  344 231 

Jewell  V.  West  Orange 36  N.  J.  Eq.  403 19 

John  V.  Hixnt 1  Blackf.  (Ind.)  324 Ill 

Johnson  v.  Brown 31  N.  H.  405 23,  25 

Jolmson  V.  Camp 51  111.  219 134 

Johnson  v.  Candage 31  Me.  28 14,  23 

Johnson  v.  Cornett 29  Ind.  59 43 

Johnson  v.  Fitzhugh 3  Barb.  Ch.  (N.  Y.)  360 128 

Johnson  v.  Hart 3  Johns.  Cas.  (N.Y.)  322.171,  176,  177 

Johnson  v.  Harmon 19  Iowa,  56 140,  142 

Johnson  V.  Hoklsworth 1  Sim.  N.  S.  (Eng.)  106 140 

Johnson  v.  Leonards 68  Me.  237 14 

Johnson  V.  Monell 13  Iowa,  300 76 

Johnson  v.  Robertson 34  Md.  165 34,  120 

Johnson  v.  Shepard 35  Mich.  115 192,  249 

Johnson  v.  Walter 60  Iowa,  315 43 

Johnson  v.  Ziiik 51  N.  Y.  333 38,  39 

Jones  V.  Harstock 42  Iowa,  147 149,  151 

Jones  V.  Lapham 15  Kan.  540 76 

Jones  V.  Mack 53  Mo.  Rep.  147 34 

iii 


XXXIV  TABLE    OF    CASES. 

PAGE. 

Jones  V.  Merritt . , 23  Hun  (N.  Y.),  184 213 

Jones  V.  Steinberg 1  Barb.  Ch.  (N.  Y.)  252 198,  207 

249,  250 

Jones  V.  Winans 20  N.  J.  Eq.  96 147 

Jordon  v.  Cheney 74  Me.  359 23 

Josselyn  v.  Edwards 57  Ind.  212 38 

Judge  V.  Boardman 2  Ala.  331 116 

Judson  V.  Dada 79  N.  Y.  379 243 

Judson  V.  Emanuel 1  Ala.  598 140 

Kamena  v.  Huelbig 23  N.  J.  Eq.  78 17,  31,     67 

Kay  V.  Whittaker 44  N.  Y.  565 73,  100,  161 

Kelgour  v.  Wood 64  111.  345 88,  91,  145 

Kelloggv.  Smith 26  N.  Y.  18 182 

Kemerer  v.  Bournes 53  Iowa,  172 181 

Kenshaw  v.  Taylor 7  Oregon,  315 Ill 

Kenyon  V.  Shreck 52  111.  382 140 

Kerchner  v.  Fairley 80  N.  C.  25 172 

Kerrick  V.  Saffery 7  Sim.   (Eng.)  317 76,125,  128 

Ketchell  v.  Burns 24  Wend.  (N.  Y.)  456 251 

Ketcham  V.  Brooks 27  N.  J.  Eq.  347 233 

Ketchum  v.  Shaw 28  Ohio,  503 101 

Keyes  V.  Wood 21  Vt.  331 15,  27.     44 

Kiddv.  Conway 65  Barb.  (N.  Y.)  158 212 

Kiernan  v.  Blackwell 27  Ark.  235 110 

Kilmer  v.  Smith 77  N.  Y.  226 227,  234 

King  V.  Bowman 24  La.  Ann.  506 127 

King  V.  Duntz 11  Barb.  (N.  Y.)  191 108 

King  V.Martin 2  Ves.  Jun.  (Eng.)  641 78 

Kingv.  McVickers 3  Sandf.  Ch.  (N.  Y.)  193 118,  120 

King  V.  Merchants'  Exchange  Co ... .    5  N.  Y.  547 24.  63,  184 

Kingv.  Safford 19  Ohio  St.  587 192 

King  V.  Whitely 10  Paige  (N.  Y.),  465. . ..237,  238,  242 

Kinlock  v.  Mordecai 1  Speer's  Eq.  (S.  C.)  464 204 

Kinna  V.Smith 2  Green  (N.  J.  Eq.),  14....  12,  50,     54 

Kinsley  V.  Abbott 19  Me.  430    21 

Kipp  V.  Brandt 49  How.  (N.Y.)  358..75,  85,  90,  97,  161 

Kissel  V.  Eaton 64  Ind.  248 101 

Kittle  V.  Van  Dyck 1  Sandf.  Ch.  (N.  Y.)  76. .  .29,  91,  100 

155,  176,  178 

Klapworth  v.  Dressier 2  Beas.  Ch.  (N.  J.)  62 230 

Kline  v.  McGuckin 24  N.  J.  Eq.  411 79 

Knickerbocker  Ice  Co.  v.  Nelson  ....    8  Hun  (N.  Y.),  21 251 

Knowles  v.  Layton 18  Ga.  476 88 

Knowles  v.  Rablin 20  Iowa,  103 140 


TABLE    OF    CASES.  XXXV 

PAGE. 

Knox  V.  Galligan 21  Wis.  470 12 

Koch  V.  Purcell 45  Snpr.  Ct.  (N.  Y.)  162  ....158.  256 

Koester  V.  Burke 81  111.  436 25 

Krutsinger  v.  Brown 72  Ind.  166 265 

Kurtz  V.  Sponable 6  Kan.  395 44 

Kygerv.  Ryley 2  Neb.  28 44 

Laberge  v.  Chauvin 2  Mo.  Rep.  145 44 

Laingv.  Byrne 34  N.  J.  Eq.  52 244,  246 

Lamb  V.Tucker 42  Iowa,  118 233 

Lament  v.  Cheshire 65  N.  Y.  30 93,  96,  159 

Landon  v.  Burke 36  Wis.  378 109 

Lane  v.  Erskine 13  111.  501 73,  77,  110 

Lane  V.  Sleeper 18  N.  H.  209 44 

Lang  V.Jones 5  Leigh  (Va.),  192 263 

Langdon  v.  Buell 9  Wend.  (N.  Y.)  80 42 

Langdon  v.  Keith 9  Vt.  299 15 

Langdon  v.  Langdon 7  De  G.,  M.  &  G.  (Eng.)  30 261 

Lannay  v.  Wilson 30  Md.  536 20,  21,  181 

Lappen  v.  Gill 129  Mass.  349 230 

Large  v.  Van  Doren 14  N.  J.  Eq.  208 62,  183 

Larimer  V.  Clemmer 31  Ohio  St.  499 172,  192 

Lasere  v.  Rochereau 21  La.  Ann.  205 74 

Lathrop  v.  Heacock 4  Lans.  (N.  Y.)  1 106 

Law  V.  Bagwell 4  Dm.  &  W.  (Eng.)  406 123 

Lawrence  v.  Elmendorf 5  Barb.  (N.  Y.)  73 58 

Lawrence  v.  Fox 20  N.  Y.  268 237 

Lawrence  V.  Lawrence 3  Barb.  Ch.  (N.  Y.)  71 18,  118 

Layman  v.  Shultz 60  Ind.  541 211 

Leaper  v.  Lyon 68  Mo.  Rep.  216 53 

Learned  v.  Foster 117  Mass.  365 86 

Leary  V.  Shaffer 79  Ind.  567 104 

Leavitt  v.  Cruger 1  Paige  (N.  Y.),  421 106 

Leavitt  V.  Pell 27  Barb.  (N.  Y.)322;  aff'd  25  N. 

Y.  474 65 

Lee  V.  Kirkpatrick 1  McCarter  (14  N.  J.  Eq.),  264. .     17 

Lee  V.Parker 43  Barb.  (N.  Y.)  611 261 

Leggett  V.  McClelland 39  Ohio,  624 .^ 110 

Leggett  V.  Mut.  Life  Ins.  Co 64  Barb.   (N.  Y.)  36;  53  N.  Y. 

400 114,  lis,  120,  124 

Lehman  v.  McQueen 65  Ala.  570 30 

Leitze  v.  Claybaugh 59  111.  136 181 

Lenihan  v.  Hamann 55  N.  Y.  652 93,  94,  127,  129 

Lening's  Estate 52  Penn.  135 225 

Lennon  v.  Porter 2  Gray  (Mass.),  473 176 


XXXVl  TABLE    OF    CASES. 

PAGE. 

Lenox  V.  Reed 12  Kan.  223 74,     86 

Leonard  V.  Adm'r  of  Villai-s 23  111.377 102 

Leonard  v.  Groome 47  Md.  499 145 

Leonard  V.  Morris 9  Paige  (N.  Y.),  90 110,  113,  194 

203,  215,  218,  248,  250,  254 

Leveridgev.  Marsh 30  N.  J.  Eq.  59 148 

Levnston  v.  Swan 33  Cal.  480 200 

Lewis  V.  Day 53  Iowa,  575 224 

Lewis  V.  Elrod 38  Ala.  17 92 

Lewis  V.  Nangle 2  Ves.  Sen.  (Eng.)  431 115 

Lewis  V.  Smith 9  N.  Y.  502..  ..53,  104,  105,  256,  261 

262,  263 

Lewis  V.  Starke 10  S.  &  M.  (MLss.)  120 11 

Linn  V.  Patton 10  W.  Va.  187 159 

Lipperd  v.  Edwards 39  Ind.  165 200 

Littauerv.  Goldman 72  N.  Y.  506 174 

Lloyd  V.  Johnson 9  Ves.  (Eng.)  37 125 

Lloyd  V.  Lander 5  Madd.  (Eng.)  282 76,78,  128 

Locke  V.  Homer 131  Mass.  93 230 

Locke  V.  Lomas 5  De  G.  &  S.  (Eng.)  326;  16  Jur. 

(Eng.)  814 55,     62 

Lockman  V.  Reilley 10  Abb.  N.  C.  (N.  Y.)  351...  120,  124 

Lockwood  V.  Benedict 3  Edw.  Ch.  (N.  Y. )  472 , . .  92,  93,  247 

Lockwoodv.  Fawcett 17  Hun  (N.  Y.),  147 214,  218 

Lockwood  V.  Reilly 95  N.  Y.  64 163 

Logan  V.  Smith 70  Ind.  598 87 

Logan  V.  Smith 62  Mo.  Rep.  455 229,  232 

Longv.  Storie 23  L.  J.  (Ch.)  N.  S.  (Eng.)  200..   165 

Loomis  V.  Riley 24  111.  307 '. 79,     93 

Lounsbury  v.  Catron' 8  Neb.  469 262 

Lovejoy  v.  Vose 73  Me.  46 36 

Lovell  V.  Farrington 50  Me.  239 180 

Lowv.  Purdy 2  Lans.  (N.  Y.)  424 Ill,  118 

Lowrey  v.  Byers 80  Ind.  443 40 

Luce  V.  Hinds Clarke  Ch.  (N.  Y.)  453  ;  194,  198,  207 

247,  248,  250 

Ludington  v.  Harris 21  Wis.  239 225 

Lund  V.  Woods 11  Mete.  (Mass.)  566 101 

Luningv.  Brady 10  Cal.  265 86 

Lunt  V.  Lunt 71  Me.  377 42 

Lyman  V.  Little 15  Vt.  576 263 

Lyonv.  Lyon 67  N.  Y.  250 66,  130,  146 

Lyon  V.  Sanford 5  Conn.  547 148,  159 

Lyster  v.  Brewer 13  Iowa,  461 23 


TABLE    OF    CASES.  XXXVll 

» 

PAGE. 

Mabury  v.  Ruiz 58Cal.  11.... 101 

Macclesfield  v.  Fitton 1  Vern.  (Eng-.)  168 115- 

Macey  v.  Fenwick 4  B.  Mon.  (Ky.)  309 140 

Mack  V.  Austin 29  Hun  (N.  Y.),  534 211 

Mack  V.  Graver 12  Ind.  254 140 

Mackenzie  v.  Alster 64  How.  (N.  Y.)  388 Ill,  118 

Maloney  V.  Horan 12  Abb.  N.  S.  (N.  Y.)  289 105 

Manhattan  B.  M.  Co.  v.  Thompson..    58  N.  Y.  84 209,  210,  212 

Manhattan  Life  Ins.  Co.  v.  Crawford,  9  Abb.  N.  C.  (N.  Y.)  365 233 

Manhattan  Life  Ins.  Co.  v.  Glover...   14  Hun  (N.  Y.),  133.. ..  ]94,  212,  213 

Manly  v.  Beaufort 1  Russ.  (Eng.)  349 86 

Manning-  v.  Markel 19  Iowa,  103 154 

Manufacturing-  Co.  v.  Price 4  Rich.  N.  S.  (N.  C.)  338 86 

Marine  Bank  v.  International  Bank . .   9  Wis.  57 25 

Mark  v.  Murphy 76  Ind.  534 8& 

Markel  v.  Evans 47  Ind.  326 ,    172 

Markle  v.  Rapp 2  Blackf.  (Ind.)  268 191 

Marks  v.  Sewall 120  Mass.  174 79 

Marlow  v.  Barlew 53  Cal.  456 263 

Marriot  v.  Givens 8  Ala.  694 64 

Marsh  v.  Austin 1  Allen  (Mass.),  235 51 

Marsh  v.  Green 79  111.  385 78 

Marsh  v.  Pike 10  Paige  (N.  Y.),   595;    aff'g-  1 

Sandf.  Ch.  (N.Y.)210..38,  40,  203,  236 

Marshall  v.  Davies    78  N.  Y.  415 36,  38,  201,  229,  231 

Martin  v.  Cauble 72  Ind.  67 210 

Martin  v.  Fi-idley 23  Minn.  13 149 

Mai-tin  v.  Harrison 2  Te'x.  456 116 

Martin  v.  McReynolds 6  Mich.  70 20,  22,  44,     64 

Martineau  v,  McCollum 3  Pinney  (Wis.),  455 44 

Marvin  v.  Taylor 27  Ind.  73 86 

Mason  v.  Ainsworth 58  111.  163 13 

Mason  v.  Barnard 36  Mo.  Rep.  384 24,  25,     2& 

Massie's  Heirs  v.  Donaldson 8  Ohio  Rep.  377 117 

Masters  v.  Templeton 92  Ind.  447 261,  264 

Mathews  v.  Aiken. 1  N.  Y.  595 207 

Matter  of  Collins 17  Hun  (N.  Y.),  289 189 

Matteson  v.  Thomas 41  111.  110 38 

Maure  v.  Harrison 1  Eq.  Ca.  Abr.  (Eng.)  93 24,  207 

Mavrich  v.  Grier 3  Nev.  32 , 109 

Mayer  v.  Farmers'  Bk 44  Iowa,  212 196 

Mayo  V.  Tomkies 6  Munf.  (Va.)  520 115 

May  V.  Fletcher 40  Ind.  575 103 

May  V.  Rayson 21  Ga.  461 88 

McAllister  V.  Plant 54  Miss.  106 20 


XXXVUl  TABLE    OF    CASES. 

f 

PAGE. 

McArthui- V.  Franklin 15  Ohio,  485;  16  Ohio,  193...  101,  106 

McBi-ide  v.  Farmers'  B'k  of  Salem ...   26  N.  Y.  457 61 

McCall  V.  Yard 1  Slockt.  Ch.  (9  N.  J.  Eq.)  358...    141 

McCarthy  v.  Graham 8  Paige  (N.  Y.),  480 194,  200 

McCarthy  v.  Tarr 83  Ind.  444 210 

McClure  v.  Holbrook 39  Mich.  42 261 

McCricket  v.  Wilson -50  Mich.  513 200 

McCrum  v.  Corby 11  Kan.  464 31 

McCurdy  v.  Clark 27  Mich.  445 27 

McDermott  v.  Burke 16  Cal.  580 134 

McDill  V.  Gunn 43  Ind.  315 233 

McDowell  V.  Jacobs 10  Cal.  387 18 

McElrath  v.  Pittsburgh  &  S.  R.  Co. . .    68  Penn.  37 141 

McFerrin  v.  Menifee 6  Coldwell  (Tenn.),  499 99 

McGlaug-hlin  V.  O'Rourke 12  Iowa,  459 195,  211 

McGowen  v.  Branch  B'k  at  Mobile. . .    7  Ala.  823 47,     64 

McGown  V.  Yerks 6  Johns.  Ch.  (N.  Y.)  450 116 

McGregor  V.  McGregor 35  N.  Y.  218 18T    52 

McGuffey  v.  Finley 20  Ohio  Rep.  474 12,  77,  173 

McHenry  v.  Cooper 27  Iowa,  137 142,  153,  160 

Mclver  v.  Cherry S  Humph.  (Tenn.)  713.. ..  52,  54,  102 

McKay  v.  Wakefield 63  Ind.  27 110 

McKee  v.  Murphy 34  Supr.  Ct.  (N.  Y.)  261 153 

McKeon  v.  Hagan 18  Hun  (N.  Y.),  65 213 

McKernan  v.  Robinson 84  N.  Y.  105 190,  195 

McKernan  V.  Weff. 43  Ind.  503 140,  142 

McKinney  v.  Hamilton •„••••    51  Penn.  63 67 

McKinney  v.  Miller ."....    19  Mich.  142 28 

McLain  v.  Badgett  &  Smith 4  Ark.  244 134 

McLallen  v.  Jones 20  N.  Y.  162 17 

McLean  v.  Lafayette  Bank 3  McLean  (U.  S.),  587 40 

McLean  v.  Ragsdale 31  Miss.  701 11 

McLean  v.  Towle 3  Sandf.  Ch.  (N.  Y.)  117 38 

McLenahan  V.  McLenahan 3  C.  E.  Green  (18  N.  J.  Eip),  101.  225 

McMannis  v.  Rice 48  Iowa,  361 130,  132 

McMillan  v.  Gordon 4  Ala.  716 179 

McMillan  v.  Mason 5  Coldwell  (Tenn.),  263 21 

McMurray  V.  McMurray 66  N.  Y.  175 131 

McPherson  v.  Housel 2  Beas.  (N.  J.  Eq.)  299 96 

McSorley  v.  Larissa 100  Mass.  270 35 

Mebanev.  Mebane 80  N.  C.  Rep.  38 117 

Mechanic's  Savings  Bank  v.  Goff. ....    13  R.  I.  516 238 

Medley  V.  Elliott 62  111.  532 43,  112 

Meech  v.  Ensign 49  Conn.  191 238 

Meeker  v.  Clayhorn 44  N.  Y.  349 12 


TABLE    OF    CASES.  XXXIX 

PAGE. 

Meeker  v.  Tanton 2  Ch.  Ca.  (Eng.)  29 51 

Meeker  v.  Wright 76  N.  Y,  262 81 

Meigs  V.  Tliomson 66  How.  (N.  Y.)  466 263,  264 

Melver  V.  Cherry 8  Humph.  (Tenn.)  713 102 

Mengv.  Houser 13  Rich.  Eq.  (S.  C.)  210 86 

Merchant  v.  Thomson 34  N.  J.  Eq.  73 99 

Merchants'  Bank  v.  Thomson 55  N.  Y.  7 100,  104,  261,  262 

Merchants'  Ins.  Co.  v.  Hinman 15  How.  (N.  Y. )  182 219 

Merchants'  Nat'l  B'k  v.  Raymond.. . .   27  Wis.  567 211 

Meredith  v.  Lackay 14  111.  529 140 

Merriman  v.  Moore 90  Penn.  78 225,  232,  233,  240 

Merritt  v.  Phenix 48^Ala.  87 86,     92 

Merritt  v.  Simpson 41  111.  391 130 

Merritt  v.  Wells 18  Ind.  171 23,  261 

Marvin  v.  Lewis 90  111.  505 51 

Micklesv.  Dillaye 15  Hun  (N.  Y.),  296 86,  88,     90 

Miles  V.  Smith 22  Mo.  Rep.  502 108,  117 

Miller  v.  Bear 3  Paige  (N.  Y.),  466  ... , 12 

Miller  v.  Donaldson 17  Ohio  Rep.  264 , 52 

Miller  V.  Finn 1  Neb.  254 149,   260 

Miller  V.  Henderson 10N.J.Eq.(2Stockt.)  320.  29, 172,  176 

Miller  v.  Thompson 34  Mich.  10 78,  228,  233 

Miller  v.  Winchell 70  N.  Y.  437 35 

Mills  V.  Hoag 7  Paige  (N.  Y.),  18 49 

Mills  V.  Traylor 30  Tex.  7 140 

Mills  V.  Van  Voorhies 20  N.   Y.   412:    10  Abb.  (N.  Y.) 

152 100,  103,  105,  106 

Mills  V.  Watson 1  Sweeney  (N.  Y.),  374.  .228,  229,  230 

Milroy  v.  Stockwell 1  Carter  (Ind.),  35 20,  206 

Mims  V.  McDowell 4  Ga.  182 37 

Mims  V.  Mims 1  Humph.  (Tenn.)  425 102 

Mims  V.  Mims 35. Ala.  23 77,     79 

Miner  v.  Beekman 50  N.  Y.  337 86,  88,     91 

Miner  v.  Smith .53  Vt.  551 76 

Minn  v.  Staut 12  Beav.  (Eng.)  190 62 

Mitchell  V.  Ladew 36  Mo.  Rep.  526 24,     25 

Mitchell  V.  McKinney 6  Heisk.  (Tenn.)  83 64 

Mix  V.  Andes  Ins.  Co 9  Hun  (N.  Y.),  397 67 

Moffitt  V.  Roche 76  Ind.  75 22,  210 

Montgomery  v.  Birge 31  Ark.  491 159 

Montgomery  v.  Tutt 11  Cal.  307 139 

Mooney  v.  Maas 22  Iowa,  380 103 

Moore  v.  Burrows 34  Barb.  (N.  Y.)  173 53 

Moore  v.  Cord 14  Wis.  213 34,  88,  140 

Mooi-e  V.  Cornell  .... 68  Penn.  320 44 


Xl  TABLE    OF    CASES. 

PAGE. 

Moove  V.  Metropolitan  Nat.  Bank 55  N.  Y.  41 17 

Moore  v.  Shaw 15  Hun  (N.  Y.),  428 200 

Moore  V.  Starks 1  Ohio  St.  369 112 

Moore  v.  Ware 38  Me.  496 23,     45 

Moors  V.  Albro 129  Mass.  9 127 

Morgan  v.  Magoffin 2  Bihl)  (Ky.),  395 81 

Morgan  v.  Wilkins 6  J.  J.  Mar.  (Ky.)  28 192 

Morrell  v.  Dickey 1  Johns.  Ch.  (N.  Y.)  153 58 

Morris  V.  Wheeler 45  N.  Y.  708 145 

Morrison  v.  Morrison 4  Hun  (N.  Y.),  410 11 

Morrow  V.  Morgan 48  Tex.  304 86 

Mor.se  V.  Larkin 46  Vt.  371 40 

Morton  v.  Noble 22  Ind.  160 104,  105 

Moses  V.  The  Clerk 12  Iowa,  140 228 

Mott  V.  Clark 9  Penn.  St.  399 17 

Mowry  v.  Sanborn 65  N.  Y.  581 75 

Moyer  V.  Hinman 13  N.  Y.  180 ^     53 

Muir  V.  Berkshire 52  Ind.  149 T     34 

Mimson  v.  Dygett 56  How.  (N.  Y.)  333. . .  .234,  238,  253 

Murdock  V.  Ford 17  Ind.  52 25,140,  181 

Murphy  v.  Farwell 9  Wis.  102 140,  142 

Murray  v.  Catlett 4  Greene  (Iowa),  108 77 

Murray  v.  Marshall 94  N.  Y.  611 231 

Muscott  V.  Woolworth 14  How.  (N.  Y.)  477 97 

Muser  v.  Miller 3  Civ.  Pro.  Rep.  (N.  Y.)  394  ;  65 

How.  (N.  Y.)  286 107 

Mutual  Life  Ins.  Co.  v.  Dake 1  Abb.  N.  C.  (N.  Y.)  380 ;  adM 

STN.'Y.  257 161 

Mutual  Life  Ins.  Co.  v.  Davies 44  Supr.  Ct.  (N.  Y.)  172 228 

Mutual  Life  Ins.  Co.  v.  Howell 32  N.  J.  Eq.  146 254 

Mutual  Life  Ins.  Co.  v.  Sturges 32  N.  J.  Eq.  678 21 

Mutual  Life  Ins.  Co.  v.  Southard ....    25  N.  J.  Eq.  337 199 

Myer  V.  Lathrop 10  Hun  (N.  Y.),  66 231 

Myers  v.  Wright 33  111.  284 23,  24,   181 

Naar  v.  Union  &  Essex  Land  Co 34  N.  J.  Eq.  111.. . .  193,  204,  230,  238 

Nagle  V.  Macy 9  Cal.  426 42 

Nat.  Fire  Ins.  Co.  v.  McKay 1  Sheldon  (N.  Y.),  138 88,  203 

N.  &  C.  Bridge  Co.  V.  Douglass 12  Bush  (Ky.),  719 119 

NewaU  V.  Wright 3  Mass.  138 10 

Newark  Sav.  Inst.  v.  Forman 33  N.  J.  Eq.  436 193,  230 

Newcomb  v.  Dewey 27  Iowa,  381 140,  141,  149 

Newhallv.  Lynn  Bank 101  Mass.  428 101 

Newhartv.  Peters 80  N.  C.  Rep.  166 99 

Newkirk  V.  Burson 21  Ind.  129 110,  215 

Ne%vman  v.  Chapman 2  Rand  Rep.  (Va.)  93 173 


TABLE    OF    CASES.  xli 

PAGE. 

Newman  v.  Home  Ins.  Co 20  Minn.  422 263 

Newton  v.  Earl  of  Egmont .'4  Sim.  (Eng.)  574 123 

Newton  v.  Stanley 28  N.  Y.  (51 51,     55 

Niagara  Bank  v.  Roosevelt 9  Cow.  (N.  Y.)  409 145,  149 

Nichols  V.  Holg-ate 2  Aik.  ( Vt.)  138 148 

Nichols  V.  Randall 5  Minn.  304 86 

Nimrock  v.  Scanlin 87  N.  C.  Rep.  119 102 

Nodine  v.  Greenfield 7  Paige  (N.  Y.),  547 ... .  114,  118,  119 

120,  124,   126 

Nolle  V.  Libbert 34  Ind.  163 51 

Norrish  v.  Mai-shall 5  Madd.  (Eng.)  475 177 

N.  Amer.  Fire  Ins.  Co.  v.  Handy.. .   2  Sandf.  Ch.  (N.  Y.)  492 249 

Northrup  v.  Wheeler 43  How.  (N.  Y.)  122 102,  107 

Norton  v.  Joy 6  Bradw.  (111.)  406 260 

Norton  V.  Lewis 3  Rich.  N.  S.  (S.  C.)  25 86 

Noi-ton  V.  Soule 2  Greenleaf  (Me.),  341 37 

Norton  v.  Warner 3  Edw.  Ch.  (N.  Y.)  106. . .  29,  40,  179 

Nottingham  v.  Calvert 1  Carter  (Ind.),  527 103 

Noyes  v.  Barnet 57  N.  H.  605 24,     25 

Noyes  v.  Sawyer 3  Vt.  160 19 

Ober  V.  Gallagher 93  U.  S.  (3  Otto.)  199 195 

O'Dougherty  v.  Remington  Paper  Co.,  81  N.  Y.  496 29 

Officer  V.  Burchell 44  N.  Y.  Supr.  Ct.  575 249 

Ohio  Life  Ins.  &  Trust  Co.  v.  Winn . .  4  Md.  Ch.  Dec.  253 44 

Ohling  v.  Luitjens 32  111.  23 86,     89 

Olds  V.  Cuinmings 31  111.  188 16,     44 

Olmstead  v.  Elder 5  N.  Y.  144 35,     66 

Olson  v.  Paul 56  Wis.  30 98 

Omohundro  v.  Henson 26  Gratt.  (Va.)  511 172 

O'Neill  V.  Clarke 33  N.  J.  Eq.  444 245 

Opdyke  v.  Bartles 3  Stockt.  Ch.  (N.  J.)  133 105 

Ord  V.  McKee 5  Cal.  515 44 

Osbourn  v.  Fallows 1  Russ.  &  M.  (Eng.)  741 61,  166 

Osgood  v.  Stevens 25  111.  89 189 

Ostrom  v.  McCann 21  How.  (N.  Y.)  431 75,  85,     90 

93,  9J,  134 

Ottawa  N.  Plank.  Co.  v.  Murray 15  111.  386 133 

OveraJl  v.  Ellis 32  Mo.  Rep.  322 29 

Owen  v.  Cawley 36  N.  Y.  600 212 

Packer  v.  Rochester  &  Syra.  R.  R.  Co.  17  N.  Y.  283 90 

Page  V.  Pierce  26  N.  H.  317 15 

Paige  V.  Chapman 58  N.  H.  333 30 

Paine  v.  Jones 76  N.  Y.  274 231,  244 


Xlii  TABLE    OF    CASES. 

PAGE. 

Palk  V.  Clinton 12  Ves.  (Eng.)  48 80,     81 

Palmer  v.  Yager 120  Wis.  91 261 

Papkin  v.  Bumstead 8  Mass.  491 'l05 

Pardee  v.  Treat 82  N.  Y.  385 237,  240,  241 

Parker  v.  Fullej- 1  Russ.  &  M.  (Eng.)  656 261 

Parker  v.  Jenks 36  N.  J.  Eq.  -398 234 

Parker  v.  Lincoln 12  Mass.  16 130 

Parker  v.  Mercer 6  H.  (Miss.)  320  27 

Parkinson  v.  Sherman 74  N.  Y.  88 235 

Parmenter  v.  Binkley 28  Ohio  St.  32 103 

Parrot  v.  Hughes 10  Iowa,  459 139 

Parsons  v.  Lyman 20  N.  Y.  103 58 

Partridge  v.  Partridge 38  Penn.  St.  78 12,     16 

Paton  V.  Mun-ay 6  Paige  (N.  Y. ),  474 17,  118,  122 

Patterson  v.  Birdsall 64  N.  Y.  294 35 

Pattison  v.  Shaw 6  Ind.  377 140,^257,  263 

Payne  v.  Burnham 62  N.  Y.  74  212 

Payne  v.  Compton 2  Y.  &  C.  (Eng.)  457 140 

Payne  v.  Grant 23  Hun  (N.  Y.),  134 ... .  104,  256,  262 

263,  265 

Payne  v.  Wilson 74  N.  Y.  348 151 

Peabody  v.  Peabody 59  Ind.  556 66 

Peabody  v.  Roberts 47  Barb.  (N.  Y.)  91 . .  139,  141 ,  142,  143 

Pease  v.  Warren 29  Mich.  9 14 

Pechard  v.  Rinquet 21  Cal.  76 215 

Peck  V.  Knickerbocker  Ice  Co 18  Hun  (N.  Y.),  183 133,  135 

Peck  V.  Mallams 10  N.  Y.  509 51,  182 

Pell  V.  Ulmar 18  N.  Y.  139 66 

Pelton  V.  Farmin 18  Wis.  222 261 

Pemberton  v.  Johnson 64  Mo.  Rep.  342 214 

Penfield  v.  Goodrich 10  Hun  (N.  Y.),  41 231 

Penn.  v.  Butler 4  Dallas  (U.  S.),  3,54 21 

Penn.  Coal  Co.  v.  Blake 85  N.  Y.  226 211,  254 

People  V.  Erie  Railway  Co 56  How.  (N.  Y.)  122 147 

People  V.  Keyser 28  N.  Y.  226 51,     56 

People's  Bank  v.  Hamilton  Co 10  Paige  (N.  Y.),  481 . .  93,  94,  95,  133 

14.%  148,  159 

Perdicaris  V.  Wheeler 4  Halst.  (N.  J.  Eq.)  68 261 

Perkins  v.  Sterne 23  Tex.  561 44 

Perkins  v.  Wood 27  Mo.  Rep.  547 111.  117 

Person  v.  Merrick 5  Wis.  231 ]  45.  261 

Persons  v.  Alsip 27  Ii  id.  6 260 

Peters  v.  Bowman 98  U.  S.  56 263 

Peters  v.  Jamestown  Bridge  Co 5  Cal.  334 42 

Petei-son  v.  Chemical  Bank 32  N.  Y.  21 .58,     59 


TABLE    OF    CASES.  xliii 

PAGE. 

Peterson  v.  Oleson 47  Wis.  122 11 

Peto  V.  Hammond 29  Beav.  (Eng-.)  91 81,     86 

Pettibone  v.  Edwards 15  Wis.  95 23,  181 

Phelan  v.  Olney 6  Cal.  478 26 

Phelps  V.  Ellsworth 3  Day  (Conn.),  397 47 

Philips  V.  Bank  of  Lewistown ■  18  Penn.  St.  394 17 

Pierce  v.  Brown 24  Vt.  165 51 

Pierce  v.  Shaw 51  Wis.  316 25,     26 

Pikev.  Collins 33  Me.  38 51 

Pike  V.  Seitler 15  Hun  (N.  Y.),  402 233 

Pillow  V.  Sentelle 39  Ark.  61 HO 

Pine  V.  Shannon 30  N.  J.  Eq.  404 179 

Pitts  V.  Aldrich 11  Allen  (Mass.),  39 102 

Planters'  Bank  v.  Douglass 2  Head  (Tenn.),  699 11 

Piatt  V.  Sprig-g....    2  Vern.  (Eng.)  804 125 

Piatt  V.  Squire 12  Mete.  (Mass. )  494 18 

Plowman  v.  Riddle 14  Ala.  169 28 

Pogue  V.  Clark 25  111.  351 23 

Pope  V.  Jacobus 10  Iowa,  262 43 

Pope  V.  North 33  111.  440 107 

Porter  v.  Clements 3  Ark.  364 22,  180 

Porter  v.  Kilgore 32  Iowa,  380 88,     92 

Porter  v.  Trail 30  N.  J.  Eq.  106 58 

Porter  v.  Parmley 52  N.  Y.  185 225 

Post  V.  Tradesmen's  Bank 28  Conn.  430 224 

Potter  V.  Crandall Clarke  Ch.  (N.  Y.)  119 45,     46 

Potts  V.  N.  J.  Arms  Co 17  N.  J.  Eq.  518 261 

Powell  V.  Ross 4  Cal.  197 102,  108 

Powell  V.  Tattle 3  N.  Y.  396 66 

Powell  V.  Wright 7  Beav.  (Eng.)444 123 

Powery.  Lester 23  N.  Y.  527 67 

Pratt  V.  Bank  of  Bennington 10  Vt.  293 ;  21  Vt.  338  ;  22  Vt.  139,     44 

Pratt  V.  Frear 13  Wis.  462 149 

Prentiss  V.  Cornell    31  Hun  (N.  Y.),  167 130 

Pi-escott  V.  EUingwood 23  Me.  345 14 

Preston  v.  Hodgen 50  111.  56 25,  181 

Pi-eston  V.  Morris 42  Iowa,  549 44 

Price's  Ex'rs  v.  Lawton 27  N.  J.  Eq.  325 261,  264 

Price  V.  Cole 35  Tex.  461 225 

Price  V.  Pollock 47  Ind.  362 228 

Prichard  v.  Elton 38  Conn.  434 110 

Prieto  V.  Duncan 22  111.  26 215 

Proctor  V.  Baker 15  Ind.  178- 140 

Prout  V.  Hoge 57  Ala.  28 45,  172 

Prud.'ii  V.  Williams 26  N.  J.  Eq.  210 247 


Xliv  TABLE    OF    CASES. 

PAGE. 

Pryor  v.  Wood 31  Penn.  St.  142 12,     16 

Pugh  V.Holt 27  Miss.  (5  Cush.)  461 24,  181 

PuUen  V.  Heron  Mining  Co 71  N.  C.  567 172 

Putnam  v.  Bicknell 18  Wis.  333 67 

Putnam  v.  Putnam 4  Pick.  (Mass. )  139 86 

Quinebaug  "Bank  v.  French 17  Conn.  134 44 

Racouillat  v.  San  Sevain 32  Cal.  376 240 

Rafterty  v.  King 1  Keen  (Eng.),  619 128 

Railroad  Co.  V.  Orr 18  Wall  (U.  S.),  471 22,  180 

Randolph  v.  Widow 21  La.  Ann.  486 117 

Rands  V.  Kendall 15  Ohio  Rep.  671 101 

Rankin  V.  Major 9  Iowa,  297 23,  181 

Ranney  v.  McMuUen 5  Abb.  N.  C.  (N.  Y.)  246. , 243 

Rapp  V.  Stoner 104  III.  618 224,  228 

Rardin  v.  Walpf)le 38  Ind.  146 40 

Rath1)one  v.  Hooney 58  N.  Y.  463 119,  124,  261,  262 

Rawson  v.  Lampman 5  N.  Y.  456 123 

Raymond  v.  Holbron 23  Wis.  57 260 

Raynor  v.  Selnies 52  N.  Y.  579 73,  86,  128 

Ream  v.  Jack 44  Iowa,  325 233 

Reedv.  Bradley 17  111.  321 133 

Reed  v.  Marble 10  Paige  (N.  Y.),  4U9 . .  73,  86,  88,     90 

Reedv.  Paul 131  Mass.  129 230 

Reid  V.  Gardner 65  N.  Y.  578 79 

Remington  Papei-  Co.  v.  O'Dougbei-ty,  81  N.  Y.  474 29 

Renaud  v.  Brown 7  Neb.  449 141 

Renaud  v.  Conselyea 7  Abb.  (N.  Y.)  105  ;  4  id.  280  ;  5 

id.  346 51,     56 

Reynoldson  v.  Perkins Ambl.  (Eng.)  564 126,  127 

Rhodes  V.  Evans Clarke  Ch.  (N.  Y.)  168 76 

Ricard  V.  Sanderson 41  N.  Y.  179 233,  241 

Rice  V.  Dillingham 73  Me.  59 30 

Rice  V.  Kelso .....    57  Iowa,  llo 149 

Rich  V.  Lord 18  Pick.  (Mass.)  322 79 

Richards  v.  Kountze 4  Neb.  208. . . .  , 44 

Richardson  v.  Hadsall 106  111.  476 134 

Richardson  v.  McKim 20  Kan.  346 25 

Richardson  v.  Skoltield 45  Me.  386 101 

Riddick  v.  Walsh 15  Mo.  Rep.  519 110 

Rigney  v.  Lovejoy 13  N.  H.  253 44 

Riley's  Adm'rs  v.  McCord's  Adm'rs..  21  Mo.  Rep.  285;  24  id.  265.. 51,  117 

Risk  V.  Hoffman 69  Ind.  137 38 

Ritch  V.  Eichelberger 13  Fla.  169 145 


TABLE    OF    CASES.  xlv 

PAGE. 

Ritter  v.  Phillips 53  N.  Y.  586 235 

Robbins  v.  Wells 26  How.  (N.  Y.)  15 61 

Roberts  v.  Stigleman 78  111.  120 19 

Roberts  V.  Wood 38  Wis.  60 264 

Robertson  v.  Caiible 57  Ind.  420 249 

Robinson  v.  Robinson 1  Laos.  (N.  Y.)  117 115 

Robinson  v.  Ryan 25  N.  Y.  320 34,  75,  86 

Robinson  v.  Williams 22  N.  Y.  380 49 

Roath  V.  Smith 5  Conn.  133 51,  54 

Roche  V.  Farnsworth 106  Mass.  509 86 

Roche  V.  Knight 21  Wis.  324 262 

Rochester  Savings  B'k  v.  Averell ....    96  N.  Y.  467 133 

Rochfort  V.  Battersby 14  Jur.  (Eng.)  229 76,  128 

Rockwell  V.  Jones 21  111.279 Ill,  116 

Roddy  V.  Elam 12&13  Rich.  L.  &  E.  (S.  C.)343..  84 

Rodger  V.  Jones 1  McCord  Ch.  (S.  C.)  221 86 

Rodman  v.  Rodman 64  Ind.  65 215 

Roger  V.  Weakly 2  Port.  (Ala.)  516  '. 165 

Rogers  v.  Bonner 45  N.  Y.  379 160 

Rogers  V.  Herron 92  111.  583 228 

Rogers  v.  Holyoke 14  Minn.  220 34   93,  96,  140 

Rogers  v.  Ward 8  Allen  (Mass.),  387 214 

Rogers  v.  Weil 12  Wis.  664 210 

Roll  V.  Smalley 2  Halst.  (N.  J.  Ch.)  464 260 

Rollins  V.  Forbes 10  Cal.  299 192 

Rolls  V.  Yate Yelv.  (Eng.)  177 20 

Rooney  V.  Bell 9  Dana  (Ky.),  4 86,  88,  141 

Roosevelt  v.  Carpenter 28  Barb.  (N.  Y.)  426 195 

Roosevelt  v.  ElUthorp 10  Paige  (N.  Y.),  415 47,  144 

Roosevelt  Hospital  V.  Dowley 57  How.  (N.  Y.)  489 167 

Root  v.  Wheeler 12  Abb.  (N.  Y.)  294 145 

Root  V.  Wright 84  N.  Y.  72 76,  78,  240 

Roscarrick  v.  Barton 1  Ch.  Ca.  (Eng.)  218 125 

Rose  V.  Kimball ICE.  Green  (16  N.  J.  Eq. ),  185,  17 

Rose  V.  Swan 56  111.  37 88 

Ross  V.  Boardman 22  Hun  (N.  Y.),  527 105 

Ross  V.  Kennison 38  Iowa,  396 228,  236,  237 

Rossv   Terry 63  N.  Y.  613 174 

Ross  V.  Utter 15  111.  402 23 

Rourke  v.  Murphy 12  Abb.  N.  C.  (N.  Y.)  402 213 

Rowan  v.  Mercer 10  Humph.  (Tenn.)  359 140 

Rowland  V.  Leiby 14  Cal.  156 192,  200 

Rowley  v.  Williams 5  Wis.  151 260 

Rucks  V.  Taylor 49  Miss.  552 260 

Russell  V.  Mullanphy 4  Mo.  Rep.  319 140 


xlvi  TABLE    OF    CASES. 

PAGE. 

Russell  V.  Pistor 7  N.  Y.  171 228 

Ryan  V.  Dunlap 17  111.40 44 

Sale  V.  Kitson 17  Jur.  (Eng.)  171 120 

Salmon  V.  Allen 11  Hun  (N.  Y.),  29 31,  177 

Sample  v.  Rowe 24  Ind.  208 25 

Samuel  v.  Peyton 88  Penn.  465 225,  232,  240 

Sanderson  v. ^Edwards Ill  Mass.  335^ 115 

Sands  V.  Wood 1  Iowa,  263 192 

Saufoi-d  V.  Bulkley 30  Conn.  344 17 

San  Francisco  v.  Lawton 18  Cal.  465 259,  263 

Sangster  v.  Love 11  Iowa,  580 23,     44 

Sargent  V.  Howe 21  111.  148.   , 25 

Savings  Bank  v.  Freese 26  N.  J.  Eq.  453. . .». 21,  182 

Sa\angs  &  Loan  Society  v.  Gibbs. ...   21  Cal.  595 115,  117 

Saylors  v.  Saylors 3  HeiskeU  (Tenn.),  525 37 

Scarry  V.  Ekfridge 63  Ind.  44 92,93,228,  247 

Schafer  v.  Reilly 50  N.  Y.  61 16 

Schroeppel  v.  Hopper 40  Barb.  (N.  Y. )  425 53 

Schwnger  v.  Hickok 53  N.  Y.  283 194,  199,  203 

Scofield  V.  Doscher 72  N.  Y.  491  . .  190,  195,  205,  206,  214 

218,  254 

Scott  V.  Liidington 14  W.  Va.  387 172 

Scott  V.  McFarland 13  Mass.  309 51 

Scott  V.  NicoU 3  Russ.  (Eng.)  476 52 

Scott  V.  Otis 25  Hun  (N.  Y.),  35 253 

Searle  v.  Whijiperman 79  Ind.  424 86 

Sedgwick  v.  Cleveland 7  Paige  (N.  Y.),  290 94,  128 

Selectmen  of  Natchez  v.  Minor 9  S.  &  M.  (Miss.)  544 31 

Semour  v.  Freeman Smith  (Ind. ),  25 13 

Semple  v.  Lee 13  Iowa,  304 86,     87 

Severence  v.  Griffith 2  Lans.  (N.  Y.)-38 43 

Seward  v.  Huntington 94  N.  Y.  114 95 

Shadbolt  V.  Bassett 1  Lans.   (N.  Y.)  121 235 

Shaw  V.  Heisey 48  Iowa,  468 34 

Shaw  V.  Hoadley 8  Blackf.  (Ind.)  165 76,  77,  110 

Shaw  V.  McNish 1  Barb.  Ch.  (N.  Y.)  328. .  145,  161,  163 

Sheldon  v.  Bennett 44  Mich.  634 19 

Sheldon  v.  Patterson 55  111.  507 104,  105 

Shellenbarger  v.  Riser 5  Neb.  195 262,  263 

Shelton  v.  Atkins 22  Pick.  (Mass.)  71 Ill 

Shields  v.  Keys 24  Iowa,  298 163 

Shinier  v.  Hammond 51  Iowa,  401 34 

Shinn  V.  Shinn 91  111.  477 41,  140,  166 

Shirkey  v.  Hanna 3  Blackf.   (Ind.)  403 18,     22 


TABLE    OF    CASES.  xlvii 

PAGE. 

Shiveley's  Adm'rs  v.  Jones . " 6  B.  Mon.  (Ky.)  274 Ill 

Shockley  v.  Shockley 20  Ind.  108 67 

Shores  v.  Scott  River  Co 21  Cal.  135 139 

Short  V.  Raub 81  111.  509 103 

Shumaker  v.  Sibert 18  Kan.  104 228 

Sickman  V.  Wood 69  111.329 78 

Simons  V.  Bryce 10  Rich.  (S.  C.)  354 115 

Simonson  V.  Blake 20  How.  (N.  Y.)  484 194 

Simsonv.  Satterlee 64  N.  Y.  657 28,  29.  179 

Singleton  v.  Cox 4  Hare  (Eng.),  326 128 

Sinking  Fund  Com'rs  v.  North'n  Bank.  1  Mete.  (Ky.)  174 28 

Skelton  v.  Ward 51  Ind.  46 201 

Skinner  V.  Back 29  Cal.  253 86,     88 

Skipp  V.  Wyatt 1  Cox  (Eng.),  353 55 

Slater  v.  Breese 36  Mich.  77 224 

Slaughter  v.  Foust 4  Blackf.  (Ind.)  379 14,  110 

Slauson  v.  Watkins 44  Supr.  Ct.  (N.  Y.)  73 233 

Slee  V.  Manhattan  Co 1  Paige  (N.  Y.),  48 155,  176,  183 

Smart  v.  Bradstock 7  Beav.  (Eng.)  500 123 

Smith  V.  Bartholomew 42  Vt.  356 49 

Smith  V.  Chapman 4  Conn.  346 139 

Smith  V.  Chichester 2  Dru.  &  War.   (Eng. )  404 61 

Smith  V.  Day 23  Vt.  662 15 

Smith  V.  Dyer 16  Mass.  18 51 

Smith  V.  Eustis 7  Me.  41 101 

Smith  V.  Gardner 42  Barb.  (N.  Y. )  356 102,  105 

Smith  V.  Kelley 27  Me.  237 14 

Smith  V.  Lawi-ence 11  Paige  (N.  Y.),  206 52 

Smith  V.  Manning 9  Mass.  422 Ill 

Smith  V.Monroe 1  Ired.  (N.  C.)  345 66 

Smith  V.  Ostermeyer 68  Ind.  432 247 

Smith  V.  Roberts 62  How.  (N.  Y.)  196 256,  257,  259 

Smith  V.  Sanger 3  Barb.  Ch.  (N.  Y.)  360 94 

Smith  V.  Schaflfer 46  Md.  573 258 

Smith  V.  Stevens 49  Conn.  181 25 

Smith  V.  Tiffany 16  Hun  (N.  Y.),  552 59 

Smith  V.  Trenton  Delaware  Falls  Co..  3  Green  (N.  J.  Eq.),  505 21 

Smith  V.  Truslow 84  N.  Y.  660 227 

Smith  V.  Webb 1  Barb.  (N.  Y.)  232 58,     59 

Smyth  V.  Lombardo 15  Hun  (N.  Y.),  415 66 

Snellv.  Stanley 58  111.  31 204 

Snyder  v.  Blair 33  N.  J.  Eq.  208 201 

Snyder  v.  Noble 94  Penn.  286 214 

Snyder  v.  Robinson 35  Ind.  311 , .   229 

Snyder  v.  Snyder 6  Mich.  470 101 


Xlviii  TABLE    OF  CASES. 

PAGE 

Somes  V.  Skinner 16  Mass.  348 64 

Soule  V.  Albee 31  Vt.  142 92 

Sontherin  v.  Mendum 5  N.  H.  420 44 

Southwoi-th  V.  Scofield 51  N.  Y.  513 188 

Sparkman  V.  Gove 44  N.  J.  L.  252 238 

Speai-  V.  Ward 20  Cal.   660 212 

Spencer  V.  Spencer 95  N.  Y.  353 231 

Sperry  v.  Dickinson 82  Ind.  132 210 

Spiller  V.  Spiller 1  Hay  ward  (N.  C),  482 78,     87 

Sprague  v.  Jones , 9  Paig-e  (N.  Y.),  395 206 

Spring- V.  Short 90  N.  Y.  538 127,  147 

Spnngsteen  v.  Gillett 30  Hun  (N.  Y.),  260 200 

Sproule  V.  Samuel 4  Scam.  (111.)  135  134 

Standish  v.  Dow 21  Iowa,  363 262 

Stanley  V.  Beatty 4  Ind.  134 14,23,     25 

Stansfield  v.  Hobson   16  Bear.  (Eng.)  189 .• 62 

Stanton  v.  Kline 11  N.  Y.   199 75.     90 

Stark  V.  Brown     12  Wis.  572 34.  Ill,  116 

Stark  V.  Fuller 42  Penn.  320 249 

State  Bank  of  Ohio  v.  Hinton 21  Ohio,  509 101 

State  Bank  v.  Tweedy 8  Blackf.  (Ind.)  447 25 

Stebbinsv.  Hall ' 29  Barb.  (N.  Y.)  524 38,  224 

Stephen  v.  Beal 22  Wal.  (U.  S.)  328 80 

Stephens  v.  Bichnell 27  111.  444 103 

Stephens  v.  Greene  County  Iron  Co. .    11  Heiskell  (Tenn.),  71 195 

Stern  v.  O'Connell 35  N.  Y.  104 97 

Stevens  v.  Campbell 21  Ind.  471 76,  78,  108,  192,  204 

Stevens  V.  Casbacher 8  Hun  (N.  Y.),  116 243,  244 

Stevens  V.  Dufour 1  Blackf.  (Ind.)  387 191 

Stevens  V.  Reeves 33  N.  J,  Eq    427 176 

Stevenson  v.  Mathers 67  111.  123 22 

Stewart  v.  Allegheny  Nat.  Bank 101  Penn.  342 79 

Stewart  v.  Hutchinson 29  How.  (N.  Y.)  181 34 

Stewart  v.  Jenkins    6  Allen  (Mass.),  300 214 

Stewart  v.  Johnson 30  Ohio  St.  24 142 

Stewart  v.  Thompson 3  Vt.  255 14 

Stiger  v.  Mahone 24  N.  J.  Eq.  426 230 

Stillwell  v.  McNeely 1  Green  Ch.  (N.  J.)  305 62 

Stimson  v.  Pease 53  Iowa,  572 127 

St.  John  v.  Bumpstead 17  Barb.  (N.  Y. )  100 86,     90 

St.  John  v.  Freeman 1  Carter  (Ind.),  84 30.  176 

Stobe  v.  Downer 13  Wis.  10 2.57 

Stone  V.  Locke 46  Me.  445 45 

Stone  v.  Scripture 4  Lans.  (N.  Y.)  186 58,     60 

Stoops  V.  Blackford 27  Penn.  St.  213 13 


TABLE    OF    CASES.  xlix 

PAGE. 

Stow  V.  Tifft 15  Johns.  Rep.  (N.  Y.)  458 103 

Straight  V.  Harris 14  Abb.  N.  C.  (N.  Y.)  509 258 

Strang  V.  Allen 44  111.  428 140,  145 

Strause  v.  Josephthal 77  N.  Y.  622 37 

Sti-eet  V.  Beal 16  Iowa,  68 89,  139 

Strohaner  v.  Voltz 42  Mich.  444 224 

Strong  V.  Downing 34  Ind.  300 172,  174 

Strother  v.  Law 54  111.  413 12 

Stuart  V.  Scott 22  Kan.  585 149 

Stucker  v.  Stucker 3  J.  J.  Mar.  (Ky.)  301 74 

Stuyvesant  V.  Hall 2  Barb.  Ch.  (N.  Y.)  151 98 

Stuyvesant  v.  Hone 1  Sandf.  Ch.  (N.  Y.)  419 98 

Suiter  v.  Turner 10  Iowa,  517 134 

Summers  v.  Bromley 28  Mich.  125 263 

Sumner  v.  Coleman 20  Ind.  486 86,  87 

Sup.'s  of  Iowa  Co.  V.  Mineral  P.  R.  R.  24  Wis.  93 66,  141 

Sutherland  v.  Rose 47  Barb.  (N.  Y.)  144 219 

Sutton  V.  Jervis 31  Ind.  265 103 

Sutton  V.  Stone 2  Atk.  (Eng.)  101 10,  125 

Suydam  v.  Bartle 9  Paige  (N.  Y. ),  294 195,  205 

Swan  V.  Wiswall 15  Pick.  (Mass.)  126 101 

Swartz  V.  Leist 13  Ohio  St.  419 14,  44 

Swenson  v.  Molina  Plow  Co 14  Kan.  387 23 

Swift  V.  Edson 5  Conn.  534 76,  77,  140 

Swift  V.  Stebbins 4  Stew.  &  Port.  (Ala.)  447 63 

Tabor  V.  Tabor 3  Swan.  (Eng.)  636 50 

Taggert  v.  San  Antonio,  etc 18  Cal.  460 201 

Taintor  v.  Hemingway 18  Hun  (N.  Y.),  458 233 

Talbot  V.  Dennis Smith  (Ind.),  357 51 

Talburt  v.  Bei-kshire 80  Ind.  434 243 

Tanguay  v.  Felthousen 45  Wis.  30 225 

Tate  V.  Jordan 3  Barb.  (N.  Y.)  392 97 

Taylor  v.  Agricultural  &  M.  Asso 68  Ala.  229 34 

Taylor  V.  Collins 51  Wis.  123 91 

Taylor  V.  Fowler 18  Ohio,  567 101 

Taylor  v.  Mayer 93  Penn.  42 225 

Taylor  v.  Porter 7  Mass.  355 78 

Taylor  v.  Towi.send 6  Mass.  264 189 

Ten  Eyck  v.  Casad 15  Iowa,  524 141 

Terrett  v.  Crombie 6  Lans  (N.  Y.)  82  ;  55  N.  Y.  683. .  120 

Terry  v.  Wilson 63  Mo.  Rep.  493 67 

Terry  v.  Woods 6  S.  &  M.  (Miss.)  139 27 

Thayer  v.  Campbell 9  Mo.  Rep.  277 15,  24,  181 

Thayer  V.  Smith 17  Mass.  429 86 

Thomas  V.  Dunning 5  De  G.  &  S.  (Eng.)  618 123 

iv 


1  TABLE    OF    GASES. 

PAGE. 

Thompson  v.  Bertram 14  Iowa,  476 228 

Thompson  v.  Commissioners 79  N.  Y.  54 66 

Thompson  v.  Field 38  Mo.  Rep.  320 24,     25 

Thompson  v.  Lyman 28  Wis.  266 103 

Thomson  V.  Smith 63  N.  Y.  301 53 

Thornborough  v.  Baker  '. 3  Swan.  (Eng. )  628 50 

Thornev.  Newby 59  How.  (N.  Y.)  120 205,  206 

Thornton  v.  Pigg 24  Mo.  Rep.  249 101,  108,  110 

Thorp  V.  Keokuk  Coal  Co 48  N.  Y.  253 235,  237,  238,  239 

Thorpe  V.  Ricks 1  Uev.  &  B.  Eq.  (N.  C.)  619. .89,  127 

Tice  V.  Annin 2  Johns.  Ch.  (N.  Y.)  125 38 

Tichenorv.  Dodd 3  Green  Ch.  (N.  J.)  454 225 

Tilford  V.  James 7  B.  Mon.  (Ky.)  337 11 

Tome  V.  Mer.  Mec.  B.  L.  Co 34  Md.  12 145,  2.57 

Toole  V.  McKiernan 48  Supr.  Ct.  (N.  Y.)  163  ....  119,  120 

Tootle  V.  White 4  Neb.  401 260 

Tormey  v.  Gerhart 41  Wis.  54 200 

Torrey  v.  Cook 116  Mass.  163 79 

Tower  v.  White 10  Paige  (N.  Y.),  395 144 

Towle  V.  Rowe 58  N.  H.  394 49 

Towusend  v.  Smith 1  Beas.  (N.  J.  Eq.)  350 66 

Trapier  v.  Waldo 16  S.  C.  276 116,  117 

Trecothick  V.  Austin 4  Mason  (U.  S.),  633 58,     60 

Trenton  Banking  Co.  v.  WoodruflF. ...    1  Green  Ch.  (N.  J.  Eq.)  117. . .  54,     67 

Trimmer  v.  Thomson 10  Rich.  (S.  C.)  164 51,  218 

Troth  V.  Hunt 8  Blackf.  (Lid.)  580 260 

Trotter  V.  Hughes 12  N.  Y.  74 226,  228,  236,  238 

Troughton  v.  Binkes 6  Ves.  (Eng.)  573 123 

True  V.  Haley 24  Me.  297  76 

Trustees  Dis.  of  N.  Y.  v.  Merriman . .  _  59  How.  (N.  Y.)  226 234 

Trustees  for  Pub.  Schools  v.  Anderson, '  30  N.  J.  Eq.  366 246 

Trustees  Jefferson  College  v.  Prentiss,  7  Cush.  (Miss.)  46 27 

Trustees  of  Jones  Fund  v.  Roth 18  Wk.  Dig.  (N.  Y.)  459 109 

Trustees  of  Union  College  v.  Wheeler,  61  N.  Y.  88 16 

Trustees  V.  Yates 1  Hoff.  Ch.  (N.  Y.)  142 76 

Tucker  v.  Leland 75  N.  Y.  186 90,  194 

Tuderv.  Morris 1  Sm.  &  Gif.  (Eng.)  503 120 

Tuttle  V.  Lane 17  Me.  437 134 

Twichell  V.  Mears 8  Bliss  C.  Ct.  (U.  S.)  214 225 

Tylee  v.  Webb 6  Beav.  (Eng.)  552 140 

Tyler  v.  Yreka  Water  Co 14  Cal.  212 , 22,  180 

Tyi-rell  v.  Ward 102  111.  29 40 

Underhill  v.  Atwater 22  N.  J.  Eq.  16 31 

Unger  V.  Leiter 32  Ohio  St.  210 105 


TABLE    OF    CASES.  li 

PAGE. 

Unger  v.  Smith 44  Mich.  22 228 

Union  Bank  v.  Bell 14  Ohio  St.  200 123 

Union  College  v.  Wheeler 61  N.  Y.  88 176 

Upton  V.  National  Bank  of  Reading. .  120  Mass.  153 48 

Urquhart  v.  Brayton 12  R.  I.  169 230 

Valentine  v.  Haff. 72  N.  Y.  184 131 

Valentine  v.  Havener 20  Mo.  Rep.  133 140 

Van  Brunt  v.  Mismer 8  Minn.  232 204 

Vanderbilt  v.  Schreyer 91  N.  Y.  392 249 

Vanderkerap  v.  Shelton 11  Paige  (N.  Y. ),  28 . . . .  139,  142,  256 

258,  259,  260 

Van  Deventer  V.  Stiger 25  N.  J.  Eq.  224 31 

Van  Horn  v.  Powers 26  N.  J.  Eq.  257 234 

Van  Nest  V.  Latson 19  Barb.  (N.  Y.)  604 76,     77 

Vansant  v.  Allmon 23  111.  30,  34 26 

Van  Schaack  v.  Sanders 32  Hnn  (N.  Y.),  515 118 

Van  Slyke  V.  Sheldon 9  Barb.  (N.  Y.)  278..  .75,  86,  90,     91 

Van  Vechter  v.  Terry 2  Johns.  Ch.  (N.  Y.)  197  ... .  122,  123 

Van  Vranker  v.  Eastman 7  Mete.  (Mass.)  157 105 

Veach  v.  Schaup 3  Clarke  (Iowa),  194 89,     92 

Verdin  v.  Slocum 71  N.  Y.  345 146 

Veree  V.  Veree 2  Brev.  (S.  C.)  211 101 

Vermilya  v.  Beatty 6  Barb.  (N.  Y.)  429 58 

Verry  v.  Robinson 25  Ind.  14 101 

Vei-y  V.  Watkins 18  Ark.  546 196 

Vickers  v.  Cowell 1  Beav.  (Eng.)  529 20,  22,  180 

Vimont  v.  Stitt 6  B.  Mon.  (Ky.)  478 44 

Virdin  V.  Slocum 71  N.  Y.  345 145 

Voorhies  v.  Granberry ~   5  Baxter  (Tenn. ),  704 212 

Vreeland  v.  Blarcom 35  N.  J.  Eq.  530 228 

Vreeland  v.  Loubat 1  Green  (N.  J.  Eq.),  104,  405. ...     77 

Vroom  V.  Ditmas 4  Paige  (N.  Y.),  526 ... .  139,  142,  145 

Vroom  V.  Van  Home 10  Paige  (N.  Y.),  549 58,     60 

Vrooman  v.  Turner 69  N.  Y.  280 92,  93,  212,  214,  238 

239,  248,  253 

Wadsworthv.  Lyon 93  N.  Y.  201 36,  204,  224,  231 

Wagner  v.  Chew 15  Penn.  St.  323 225 

Waldo  V.  Williams 2  Scam.  (111.)  471 146 

Wales  V.  Sherwood 52  How.  (N.  Y.)  413 228,  233 

Walker  V.  Bank  of  Mobile 6  Ala.  4.52 172 

Walker  v.  King 44  Vt.  601 37 

Walker  V.  Schreiber 47  Iowa,  529 25,  44,  140 

Wallace  v.  Dunning Walker  Ch.  (Mich.)  416 49 

Wallace  v.  Holmes 40  Penn.  427 117 


lii  TABLE    OF    CASES. 

PAGE. 

Waller  V.  Harris 7  Paige  (N.  Y.),  167 139 

Wallwyn  v.  Coutts 3  Mer.  (Eng-.)  707 123 

Walsh  V.  Rutgers  Fire  Ins.  Co 13  Abb.  (N.  Y.)  33 142,  144,  261 

Walsh  V.  Truesdale 1  Bradw.  (111.)  12H 119 

Walsh  V.  Wilson 130  Mass.  124 104 

Walter  V.  Wala 10  Neb.  123 66 

Walters  V.  Walters 73  Ind.  425 103 

Walton  V.  Goodnow 13  Wis.  661 192 

Walton  V.  Jones 2  Y.  &  C.  C.  C.  (Eng.)  244 119 

Wanzer  v.  Cary 76  N.  Y.  526 , 43 

Ward  V.Price 12  N.  J.  Eq.  543 48 

Ward  V.Sharp 15  Vt.  115 174 

Ward  V.  Van  Bokkelen 2  Paige  (N.  Y.),  295.. 152, 156, 172,  173 

Waring  v.  Turton 44  Md.  535 183 

Warner  v.  Beardsley 8  Wend.  (N.  Y.)  194 40 

Warner  v.  Dewitt  Co.  Bank 4  Bradw.  (111. )  305 -  260 

Warren  V.  Burton 9  S.  C.  197 257 

Warren  v.  Homestead 33  Me.  256 44 

Waters  v.  Bossel 58  Miss.  602 260 

Watson  v.  Church _...    3  Hun  (N.  Y.),  80 106 

Watson  v.  Spence * 20  Wend.  (N.  Y.)  260. . 74,  86,  88,     91 

Watt  V.  Alvord 25  Ind.  533 101 

Wattv.  Watt 2  Barb.  Ch.  (N.  Y.)  371 93 

Wayman  v.  Cochrane    35  111.  152 44 

Webb  v.  Flanders 32  Me.  175 42 

Webb  v.  Maxan 11  Tex.  678 90 

Weber  v.  Zeiment 30  Wis.  283 225 

Webster  V.  Calden 56  Me.  204 43,     51 

Weed  V.  Beebe 21  Vt.  495 140,  257 

Weed  Sewing  M.  Co.  v.  Emerson 115  Mass.  554 99,  109 

Weeks  v.  Tomes 16  Hun  (N.  Y.),  349;  affd  76  N. 

*  Y.  601 93,  98,  160 

Wehy  v.  Boylan 62  How.    (N.  Y.)  397;   aff'd  63 

How.  (N.  Y.)  72 97 

Weil  V.  Martin 24  Hun  (N.  Y.),  645 107 

Weir  V.  Mosher 19  Wis  311 51 

Welch  V.  Buckins 9  Ohio  St.  331 103 

Welp  V.  Gunther 48  Wis.  543 198 

Wendell  v.  New  Hampshire 9  N.  H.  404 10 

Westerfield  v.  S[)encer 61  Ind.  339 173 

Western  Ins.  Co.  V.  Eagle  Fire  Ins.  Co.  1  Paige  (N.  Y.),  284 256,  259 

Western  Reserve  Bank  v.  Potter....    Clarke  Ch.  (N.  Y.)  437 157,  172 

176,  259 

Westfall  V.  Lee 7  Clarke  (Iowa),  12 104 

Wetherell  v.  Collins 3  Madd.  (Eng. )  255 54,  166 


TABLE    OF    CASES.  liii 

PAGE. 

Wetmore  V.  Roberts 10  How.  (N.  Y.)  51 153,  156 

Whalen  v.  White 25  N.  Y.  462 133,  134 

Wheeler  v.  Emerson 45  N.  H.  527 44 

Wheeler  v.  Morris 2  Bosw.  (N.  Y.)  524 100,  103 

Wheeler  V.  Van  Kuran 1  Barb.  Ch.  (N.  Y.)  490 144 

White  V.  Bartlett 14  Neb.  320 156 

White  V.  Coulter 1  Hun  (N.  Y.),  357;  3  T.  &  C. 

(N.  Y.)  608;  59  N.  Y.  629. .98,  105 
106,  107 

White  V.  Fisher 62  HI.  258 41 

White  V.  Holman 32  Ark.  753 257,  260 

White  V.  Rittemyer 30  Iowa,  268 51,  110,  163 

WTiite  V.  Secor 58  Iowa,  533 54 

White  V.  Williams*. 2  Green  Ch.  (N.  J.)  376 189 

Whitev.Zust 28  N.  J.  Eq.  107 200 

Whiting-  V.  Geary 14  Hun  (N.  Y.),  498 244 

Whitney  v.  Hig-g-ins 10  Cal.  547 139 

Whitney  v.  McKinney 7  Johns.  Ch.  (N.  Y.)  144 . .  30,  72,     76 

152,  153,  172,  173,  176 

Whittemore  v.  Gibbs 24  N.  H.  484 44 

Whittla  V.  Halliday 4  Dru.  &  War.  (Eng.)  267 164 

Wicke  V.  Fake 21  Wis.  410 262 

Wickeuden  v.  Rayson 6  De  G.  &  M.  (Eng.)  210 261 

Wightman  V.  Gray 10  Rich.  Eq.  (S.  C.)  518 191 

Wilcox  V.  Allen 36  Mich.  160 27 

Wilcoxon  V.  Osborn  77  Mo.  Rep.  621 34 

Wiley  V.  Ewing.... 47  Ala.  418 141 

Wiley  V.  Pinson 23  Tex.  486 23,  79,  116 

Wilhelm  V.  Lee 2  Md.  Ch.  Dec.  322 196 

Wilkerson  v.  Daniels 1  Greene  (Iowa),  179 192,  259 

Wilkins  V.  Wilkins 4  Port.  (Ala.)  245 112,  116 

Wilkinson  v.  Green 34  Mich.  221 261,  263 

Willai-d  v.  Nason 5  Mass.  240 117 

Williams  v.  Beard 1  Rich.  (S.  C.)  309 87,  111 

Williams  V.  Fowler  132  Mass.  385 230 

Williams  v.  Gillier 28  Hun  (N.  Y.),  175 228 

Williams  V.  Hilton 35  Me.  547 21 

Williams  v.  Meeker 29  Iowa,  292 77,     91 

Williams  v.  Perry 20  Ind.  437 79 

Williams  V.  Smith 49  Me.  564 172 

Williams  v.  .Storrs 6  Johns.  Ch.  (N. Y.)  353 58 

Williams  v.  Terrell 54  Ga.  462 88 

Williamson  v.  Dufty 19  Hun  (N.  Y.),  312 213 

Williamson  v.  Field 2 Sandf.  Ch.  (N.  Y.)  r)33. . 86,  110,  118 

120,  121,  123,  124 


liv  TABLE    OF    CASES. 

PAGE. 

Williamson  v.  Probasco 4  Halst.  (N.  J.  Eq.)  571 257 

WiUinkv.  Morris  Canal  Banking  Co..  3  Green  Ch.  (N.  J.)  377..  63,  141,  166 

Willis  V.  Farley 24  Cal.  490 44 

Willis  V.  Henderson 4  Scam.  (111.)  13 123 

WilHs  V.  Vallette 4  Mete.  (Ky.)  195 42 

Wilson  V.  Eigenbrodt 30  Minn.  4 26 

Wilson  V.  Fatout 42  Ind.  52 30 

Wilson  V.  Giddings 28  Ohio  St.  554 31 

Wilson  V.  Hayward 2  Fla.  27 23 

Wilson  V.King 27  N.  J.  Eq.  374 233 

Wilson  V.  Scott 29  Ohio  St.  636 102 

Wilson  V.  Spring 64  111.  14 13,  172 

Wilton  V.  Jones 2  Y.  &  C.  C.  C.   (Eng.)  244...51,     61 

Winchester  v.  Paine 11  Ves.  (Eng.)  194 95 

Winebrenner  v.  Johnson 7  Abb.  N.  S.  (N.  Y.)  202....  145,  147 

149,  150,  151 

Winkleman  v.  Kiser 27  111.  21 11,     16 

Winnev.  Littleton 2  Ch.  Ca.  (Eng.)  51 52 

Winslow  V.  Clark 47  N.  Y.  261 86,  88,  89,  127 

Winslow  V.  McCall 32  Barb.  (N.  Y.)  241.. . .  141,  153,  156 

Winters  V.  Bank 33  Ohio  St.  250 25,     26 

Wise  V.  Fuller 29  N.  J.  Eq.  257 238 

Wochoska  v.  Wochoska .45  Wis.  423 67 

Wolf  V.  Banning 3  Minn.  202 86,  109 

Wood  V.  Chew 13  How.  (N.  Y.)  86 101 

Wood  V.  Harman 5  Madd.  (Eng.)  368 55,     62 

Wood  V.Love 27  Mich.  308 83,  148 

Wood  V.  Morehouse 1  Lans.  (N.  Y.)  405 110 

Wood  V.  Nisbit 20  Ga.  72 ^ 120 

Wood  V.Smith 51  Iowa,  156  ..*. 36,     38 

Wood  V.  Stanberry 21  Ohio  St.  142 199 

Wood  V.  Terry 4  Lans.  (N.  Y.)  80 ...      66 

Wood  V.  Trask 7  Wis.  566 25 

Wood  V.  Williams 4  Madd.  (Eng.)  186 12,  54,     64 

Woodbury  v.  Swan. 58  N.  H.  380 224 

Wooden  v.  Haviland 18  Conn.  107 32 

Woodruff  V.  Depue 1  McCarter  (14  N.  J.  Eq.),  168. .      17 

29,  62,  176 

Woodi-uff  V.  Mutschler 34  N.  J.  Eq.  33 58 

Woodruff  V.  Stickle 28  N.  J.  Eq.  549 231 

Woodward  v.  Wood 19  Ala.  213 18 

Woolner  v.  Wilson 5  111.  App.  439 120 

Wright  V.  Bundy 11  Ind.  398 62 

Wright  V.  Eaves.- 10  Rich.  Eq.  (S.  C.)  582 76,  117 

Wrightv.  Howell 35  Iowa,  288 149 


TABLE    OF    CASES.  Iv 

"PAGE. 

Wright  V.  Langley 36  HI.  381 102 

"Wright  V.  Parker 2  Aik.  (Vt.)  212 15,     27 

Wright  V.  Sperry 21  Wis.  331 16,  172,  176 

Wright  V.  Troutman 81  111.  374 13 

Wurcherer  v.  Hewitt 10  Mich.  453 261,  263 

Wylie  V.  McMackin 2  Md.  Ch.  Dec.  413 145 

Yager  v.  Merkle 26  Minn.  429 109 

Yale  V.  Dederer 68  N.  Y.  334 210,  212 

Yates  V.  Hambly 2  Atk.  {Eng.)237 125 

Yorkv.  Allen 30  N.  Y.  104 66 

Young  V.  Tarbell 37  Me.  509 103 

Youngman  V.  Elmira  &  W.  R.  R 65  Penn.  278 36,     96 

Youngs  V.  Trustees  of  Pub,  Schools. .   31  N.  J.  Eq.  290 197,  246,  247 

Youse  V.  M'Creary . 2  Blackf.  (Ind.)  243 191 

Zabriskie  V.  Smith 13  N.  Y.  322 61 

Zaegel  v.  Kuster 51  Wis.  31 105,  111 

Zeiter  v.  Bowman 6  Barb.  (N.  Y.)  133 93,  134 


INTRODUCTION. 


§  1.  Generally. 

2.  Methods  of  foreclosure. 

3.  Parties  generally  in  equitable  foreclosures. 

4.  Application  by  American  courts. 

5.  Result  of  foreclosure  upon  the  parties. 

§  1.  Generally. 

In  the  conduct  of  an  action  in  a  court,  or  of  a  pro- 
ceeding under  a  statute,  it  has  always  been  of  the  first 
importance  that  the  persons  to  be  bound  by  the  result 
should  be  brought  within  the  jurisdiction  of  the  author- 
ity pretended  to  be  exercised.  With  some  classes  of 
actions  the  practitioner  has  no  difficulty  in  determin- 
ing who  should  be  brought  into  court ;  but  in  the 
enforcement  of  the  rights  which  attach  to  a  mortgage 
and  the  debt  it  secures,  difficult  and  complicated  ques- 
tions are  often  presented  as  to  who  should  be  brought 
within  the  cognizance  of  the  court,  that  a  complete 
remedy  may  be  obtained  by  the  prosecutor,  and  that 
the  rights  of  no  claimant  of  an  interest  in  the  subject- 
matter  or  in  the  object  of  the  proceeding,  may  be  made 
to  suffer  an  injury,  or  allowed  to  pass  unprotected — 
and  this  is  necessarily  so  from  the  peculiar  character 
and  history  of  mortgage  securities,  and  from  the  large 


2  PARTIES    TO    MORTGAGE    FORECLOSURES. 

place  that  the  law  of  mortgages  fills  in  the  general 
jurisprudence  and  practice  of  our  states.  Attention 
will  be  given  in  the  following  pages  to  a  consideration 
of  the  questions,  who  may  be  and  who  should  be  brought 
into  an  action  or  a  proceeding  to  enforce  a  mortgage, 
and  what  are  the  rights  of  parties  with  reference  to 
such  enforcement. 

§  2.  Methods  of  foreclosure. 

There  are  four  principal  methods  by  which  mort- 
gages may  be  foreclosed  in  the  United  States,  and  as 
all  depend  upon  equitable  principles  in  their  origin  and 
application,  they  cause  but  little  variation  in  the  treat- 
ment of  parties.  1.  Foreclosure  by  entry  and  possession 
originally  required  the  actual  entry  upon,  and  posses- 
sion of,  the  mortgaged  premises ;  this  procedure  has 
been  greatly  assisted  by  the  writ  of  entry,  which  is 
much  in  the  nature  of  an  equitable  action,  though  nom- 
inally an  action  at  law.  Foreclosure  by  entry,  how- 
ever, is  mainly  confined  to  Massachusetts,  Maine,  New 
Hampshire  and  Rhode  Island.  2.  Strict  foreclosure,  or 
foreclosure  without  a  sale,  was  a  procedure  greatly 
used  in  England  at  one  time,  and  its  purpose  was  to 
perfect  in  the  mortgagee  an  absolute  title,  instead  of  to 
obtain  a  decree  of  sale ;  the  courts  in  most  states  recog- 
nize this  method,  but  allow  its  use  only  in  exceptional 
cases,  owing  to  its  severity  upon  the  rights  of  the 
owner  of  the  equity  of  redemption.  3.  Statutory  fore- 
closure, or  foreclosure  by  advertisement,  is  a  procedure 
provided  by  the  legislatures  of  nearly  all  our  states, 
every  step  in  which  is  specifically  prescribed  by  stat- 
ute.    Owing   to  its  extreme   technicality  and  insuffi- 


PARTIES    GENERALLY    IN    EQUITABLE    FORECLOSURES.         3 

ciency  of  remedy,  it  is  seldom  practiced  where  equitable 
actions  are  allowed.  4.  A?i  equitable  action  is  now  the 
almost  universal  procedure,  among  the  English-speaking 
races,  for  the  foreclosure  of  a  mortgage.  So  broad  and 
comprehensive  is  the  process  of  foreclosure  by  an  equit- 
able action,  that  a  consideration  of  parties,  with  refer- 
ence to  that  procedure,  will  also  cover  the  subject 
where  the  procedure  is  by  entry  and  possession,  or  by 
strict  foreclosure,  so  that  attention  need  not  be  given 
separately  to  those  two  methods ;  while  in  statutory 
foreclosures,  special  provisions  are  made  as  to  parties. 
Where  no  provisions  are  made,  equitable  rules  control. 
The  subject  of  this  work  is  thus  reduced  to  parties  to 
mortgage  foreclosures  by  equitable  actions.  Such  vari- 
ations as  may  exist  in  the  other  methods  will  be  noticed 
in  their  proper  connection. 

§  3.  Parties  generally  in  equitable  foreclosures. 

There  are  two  leading  principles  which  control  courts 
of  equity  the  world  over  in  determining  the  proper  par- 
ties to  a  suit :  first,  that  the  rights  of  no  man  shall  be 
decided  in  a  court  of  justice  unless  he  himself  be  pres- 
ent ;  second,  that  the  decree  rendered  shall  provide  for 
the  rights  of  all  persons  whose  interests  are  in  any  way 
connected  with  the  subject-matter  of  the  action.  The 
combination  of  these  two  principles  has  given  rise  to 
the  general  rule  that  all  persons  having  an  interest  in 
the  object  of  the  suit  ought  to  be  made  parties.  As 
expressed  by  an  eminent  English  jurist,  "  all  persons 
materially  interested  in  the  subject  ought  generally  to 
be  parties  to  the  suit — plaintiffs  or  defendants,  however 
numerous  they  may  be,  so  that  the  court  may  be  en- 


4  PARTIES    TO    MORTGAGE    FORECLOSURES. 

abled  to  do  complete  justice  by  deciding  upon  and 
settling  the  rights  of  all  persons  interested,  and  that 
the  orders  of  the  court  may  be  safely  executed  by  those 
who  are  compelled  to  obey  them,  and  future  litigation 
may  be  prevented."^  It  is  only  by  the  application  of 
such  broad  principles  that  that  complete  justice  which 
equity  courts  "delight  to  render,"^  can  be  administered 
to  the  numerous  persons  who,  in  nearly  every  case, 
have  some  interest  in  the  mortgage  debt  or  in  the  mort- 
gaged premises  under  foreclosure.  In  their  practical 
application,  however,  these  principles  are  subject  to 
many  limitations  and  modifications,  due  mainly  to  local 
interpretation  and  statutory  enactments. 

§  4.  Application  by  American  courts. 

These  general  principles,  established  by  such  eminent 
English  judges  as  Lords  Talbot,''  Redesdale,^  Hard- 
wicke,'  Thurlow,*^  Eldon,'  Langsdale^  and  Sir  William 
Grant,^  have  been  adopted  by  all  our  equity  courts, 
state  and  federal ;  and  in  many  states  the  general  prin- 
ciples of  equity  respecting  parties  to  suits  have  been 
incorporated  into  their  codes. ^"  In  New  York  it  is 
provided  that  "  all  persons  having  an  interest  in  the 

1  Lord  Redesdale  in  Red.  PI.  164. 
-  Knight  V.  K.,  3  P.  W.  833  (1734). 
3  Knight  V.  K.,  3  P.  W.  333  (1734). 
^  Red.  PI.  164. 

5  Poore  V.  Clarke,  2  Atk.  (Eng.)  515  (1742). 

6  Anon.,  1  V.  325  (1809). 

•^  Cockburn  v.  Thompson,  16  V.  385  (1809). 

8  Richardson  v.  Hastings,  7  Beav.  (Eng.)  323,  326  (1844). 

9  Palk  V.  Clinton,  12  V.  58  (1806). 

1*^  See  Jones,  §  1367,  for  citations  to  the  codes  of  the  different 
states. 


RESULT    OF    FORECLOSURE    UPON    THE    PARTIES.  5 

subject  of  the  action  and  in  obtaining  the  judgment 
demanded,  may  be  joined  as  plaintiffs."  ^  "Any  person 
may  be  made  a  defendant  who  has  or  claims  an  interest 
in  the  controversy  adverse  to  the  plaintiff,  or  who  is  a 
necessary  party  defendant,  for  a  complete  determination 
or  settlement  of  a  question  involved  therein."'^  But 
in  the  details  of  practice,  various  and  often  antagonistic 
rules  have  grown  up  in  the  different  states  respecting 
the  proper  and  necessary  parties  to  foreclosures,  as  will 
be  seen  from  an  examination  of  the  cases  cited  under 
almost  any  of  the  following  sections.  It  is  only  in  rare 
or  complica'ted  cases,  however,  that  the  rules  differ 
materially,  especially  where  questions  of  trust,  assign- 
ment, representation  and  personal  liability  are  con- 
cerned ;  in  simple  cases  the  rules  are  substantially 
alike.  When  a  mortgage  and  the  parties  to  it  remain 
the  same  at  the  time  of  foreclosure  as  at  the  time  of 
delivery,  it  is  a  universal  rule  that  the  mortgagee  and 
the  mortgagor  are  the  only  parties  to  be  brought  before 
the  court. 

§  5.  Result  of  foreclosure  upon  the  parties. 

Two  purposes  are  now  generally  sought  to  be  accom- 
plished in  foreclosures :  first,  the  extinguishment  of  the 
title  in  the  mortgagee  and  the  mortgagor,  and  those 
claiming  under  them,  so  as  to  offer  a  perfect  title  at  the 
sale,  or  such  a  title  as  a  court  will  compel  a  bidder  to 
accept;  this  purpose  aims  at  exhausting  every  remedy 
against  the  land  for  collecting  the  mortgage  debt,  and 
when  foreclosures  were  merely  actions  in  rem,  as  origin- 

1  New  York  Code  of  1880,  §  446. 

2  New  York  Code,  §  447. 


6  PARTIES    TO    MORTGAGE    FORECLOSURES. 

ally,  they  had  no  other  purpose  or  result ;  second,  the 
recovery  of  a  personal  judgment,  for  any  deficiency  that 
may  remain  after  the  proceeds  of  a  sale  are  applied  to  the 
payment  of  the  mortgage  debt,  against  all  who  have  in 
any  way  become  liable  for  the  money  secured  by  the 
mortgage, — a  purpose  accomplished  originally  only  in 
actions  in  personam.  The  union  of  these  two  results  in 
one  judgment  is  quite  recent,  and  is  allowed  only  by 
special  statute.  The  effect  of  the  first  purpose  is 
declared  in  most  states  by  statute.  In  New  York  it  is 
.provided  that  '*  a  conveyance  upon  a  sale,  made  pursu- 
ant to  a  final  judgment,  in  an  action  to  foreclose  a  mort- 
gage upon  real  property,  vests  in  the  purchaser  the 
same  estate  only,  that  would  have  vested  in  the  mort- 
gagee, if  the  equity  of  redemption  had  been  foreclosed. 
Such  a  conveyance  is  as  valid,  as  if  it  was  executed  by 
the  mortgagor  and  mortgagee,  and  is  an  entire  bar 
against  each  of  them,  and  against  each  party  to  the 
action  who  was  duly  summoned,  and  every  person  claim- 
ing from,  through  or  under  a  party,  by  title  accruing 
after  the  filing  of  the  notice  of  the  pendency  of  the 
action,  as  prescribed  in  the  last  section."^  The  impor- 
tance of  bringing  the  proper  and  necessary  parties  to  a 
foreclosure  suit  within  the  jurisdiction  of  the  court,  is 
thus  apparent ;  for  omitted  parties  are  never  bound  by 
the  decree,  and  their  omission  renders  the  title  imper- 
fect, and  the  results  sought  incomplete. 

1  New  York  Code,  §  1632. 


PART  I. 


PARTIES  PLAINTIFF. 

5  6.  Introductory. 

7.  Sole  mortgagee,  owning  the  mortgage,  may  foreclose. 

8.  Assignee,  sole  owner  of  mortgage,  may  foreclose. 

9.  Joint  mortgagees :  any  one  or  more  may  foreclose. 

10.  Partners ;  any  one  or  more  may  foreclose. 

11.  Joint  mortgagees,  one  dying ;  doctrine  of  survivorship. 

12.  Mortgagees,  owners  in  severalty;    any  one  or  more 

may  foreclose. 

13.  Owner  of  one  of  several  notes  secured  by  a  mortgage 

may  foreclose. 

14.  Owner  of  mortgage,  having  pledged  the  same  as  col- 

lateral security,  may  foreclose. 

15.  Assignee  of  mortgage  as  collateral  security  may  fore- 

close. 

16.  Owner  of  an  equitable  interest  of  any  kind  in  the 

mortgage,  a  real  party  in  interest,  may  generally 
foreclose. 

17.  A  surety  for  the  mortgage  debt  may  sometimes  fore- 

close. 

18.  Assignee  of  a  mortgage  without  the  bond  cannot  fore- 

close. 

19.  Assignee  of  the  note,  bond  or  debt,  may  foreclose, 

though  the  mortgage  is  not  assigned. 

20.  Mortgagees  owning  contemporaneous  mortgages,  being 

equal  liens,  any  one  or  more  may  foreclose. 


8  PARTIES    TO    MORTGAGE    FORECLOSURES. 

§  21.     Owner  of  two  mortgages  cannot  foreclose  both  at  the 

same  time  in  separate  actions. 
22.     Assignee  in  bankruptcy  or  by  general  assignment, 

or  receiver  of  a  corporation,  may  foreclose. 
28.     Assignee  pendente  lite  may  continue  the  foreclosure. 

24.  Owner  of  mortgage  dying,  personal   representatives 

may  foreclose. 

25.  Owner  of  mortgage  dying,  heirs,  devisees  and  lega- 

tees generally  cannot  foreclose. 

26.  Mortgage  executed  to  an  executor  or  administrator^ 

the  executor  or  administrator  or  his  successor  in 
office  may  foreclose. 

27.  Foreign  executors  and  administrators,  when  they  may 

foreclose. 

28.  Trustees  may  foreclose. 

29.  Beneficiaries,  cestuis  que  trust,  may  sometimes   fore- 

close. 

30.  Mortgages   to   persons   in   official   capacity,   they   or 

their  successors  may  foreclose. 

31.  A  married  woman  owning  a  mortgage  may  foreclose. 

§  6.  Introductory. 

Mortgages  are  now  universally  recognized  as  securi- 
ties upon,  and  not  titles  in,  real  estate.  The  party 
holding  the  security  has  such  an  interest  in  the  title, 
however,  that  so  long  as  his  debt  exists  the  security 
binds  the  title  to  its  ultimate  payment.  That  the  title 
may  be  cleared  of  this  lien  by  the  process  of  foreclosure, 
the  equitable  rule  has  been  established  that  every  party 
who  has  any  interest  in  the  mortgage  debt  must  be 
brought  before  the  court,  that  the  rights  and  interests 
of  all  in  the  security  may  be  adjudged  in  relation  to 
the  mortgaged  premises.  All  parties  interested  in  the 
mortgage  debt  may  come  before  the  court  together;  and 
in  some  states  it  is  provided  by  statute  that  "  all  per- 


INTRODUCTORY.  9 

sons  having  an  interest  in  the  subject  of  the  action  and 
in  obtaining  the  judgment  demanded  may  be  joined  as 
plaintiffs."^  It  is  indispensable  that  the  plaintiff  have 
a  real  interest  in  the  action ;  the  New  York  Code  has 
provided  that  every  action  must  be  prosecuted  in  the 
name  of  the  real  party  in  interest,  except  that  since  the 
abolition  of  uses  and  trusts  a  personal  representative 
and  a  trustee  of  an  express  trust  may  sue  without  join- 
ing with  him  the  person  for  whose  benefit  the  action  is 
prosecuted.'-^ 

There  are  many  cases  in  which  more  than  one  per- 
son has  an  interest  in  the  mortgage,  and  in  which  all 
interested  may  join  as  plaintiffs.  Some,  however,  may 
refuse  to  join  as  co-plaintiffs,  and  such  parties  may,  as 
a  general  rule,  be  made  defendants  to  the  action.  It  is 
not  material  who  begins  the  action,  for  it  is  sufficient 
in  equity  that  all  parties  interested  in  the  subject 
of  the  suit  be  before  the  court,  in  the  form  of  plaintiffs 
or  of  defendants  ;  but  no  person  can  be  a  plaintiff  unless 
he  has  a  real  interest  in  the  mortgage  or  in  the  debt 
thereby  secured.  It  is  generally  true  that  any  person 
who  is  so  interested,  even  in  a  remote  or  conditional 
way,  may,  as  plaintiff,  commence  an  action  to  foreclose, 
making  defendants  all  other  parties  interested  in  any 
way  in  the  bond  and  mortgage,  upon  their  refusal  to  join 
as  co-plaintiffs.^ 

1  New  York  Code  of  1880,  §  446. 

2  Id.,  §  449. 

^  This  general  equitable  rule  has  been  embodied  in  the  codes 
of  some  states.  Hee  the  New  York  Code,  §  448  :  "  Of  the  parties  to 
the  action,  those  who  are  united  in  interest  must  be  joined  as 
plaintiffs  or  defendants,  except  as  otherwise  expressly  prescribed 
in  this  act.  But  if  the  consent  of  any  one,  who  ought  to  be 
joined  as  a  plaintiff,  cannot  be  obtained,  he  may  be  made  a 


10  PARTIES    TO    MORTGAGE    FORECLOSURES. 

As  no  one  but  the  mortgagee,  or  those  claiming  under 
him,  can  have  any  cause  for  commencing  a  foreclosure, 
he  or  his  successor  in  interest  generally  becomes  a  party 
to  the  action  by  voluntarily  instituting  it  as  plaintiff. 
Bonds  and  mortgages  have  become  such  favorite  secur- 
ities and  investments  with  capitalists  and  others  that 
the  law  determining  the  rights  of  parties  holding  them 
has  grown  into  unusual  importance  in  many  states,  so 
that  complicated  questions  have  arisen  in  the  courts  as 
to  who  can  maintain  an  action  for  foreclosure ;  and  the 
first  part  of  this  work  will  be  devoted  to  the  considera- 
tion of  parties  plaintiff,  or  those  who  may  commence 
the  foreclosure  of  a  mortgage. 

§  7.  Sole  mortgagee,  owning  the  mortgage,  may  foreclose. 

It  is  almost  axiomatic  that  a  sole  mortgagee,  who 
continues  to  own  his  mortgage,  may  be  plaintiff  in  an 
action  to  foreclose  the  same.  He  is  a  party  to  the  con- 
tract, and  the  only  person  who  can  be  aggrieved  by  a 
breach  of  it  on  the  part  of  the  mortgagor,  or  those  who 
succeed  to  the  mortgagor's  interest ;  he  is  the  only  per- 
son who  can  be  plaintiff,  as  no  one  else  has  any  interest 
in  the  mortgage  or  the  indebtedness  thereby  secured.^ 
The  same  rule  is  true  in  statutory  foreclosures.'- 

defendant,  the  reason  therefor  being  stated  in  the  complaint. 
And  where  the  question  is  one  of  a  common  or  general  interest 
of  many  persons;  or  ^Yhere  the  persons,  who  might  be  made  par- 
ties, are  very  numerous,  and  it  may  be  impracticable  to  bring 
them  all  before  the  court,  one  or  more  may  sue  or  defend  for  the 
benefit  of  all." 

1  Newall  V.  Wright,  .3  Mass.  138  (1807) ;  Haskell  v.  Bailey.  22 
Conn.  573  (1853) ;  Wendell  v.  New  Hampshire  Bank,  9  N.  H.  404, 
417  (1838);  Sutton  v.  Stone,  2  Atk.  (En^.)  101  (1740);  Jones, 
§§  1371,  1373 ;  Pow.  967,  968. 

2  Hubbell  V.  Sibley,  5  Lans.  (N.  Y.)  51  (1871). 


SOLE    MORTGAGEE    MAY    FORECLOSE.  11 

The  fact  that  a  mortgagee  was  appointed  administra- 
tor of  his  mortgagor's  estate  does  not  prevent  him  from 
foreclosing  against  the  heirs  of  the  mortgagor.^  And 
where  a  decree  of  foreclosure  has  been  vacated  for 
irregularity,  the  mortgage  is  not  cancelled,  but  restored, 
and  the  mortagee  may  foreclose  again.  A  surety  may 
foreclose  an  indemnifying  mortgage,  which  he  holds  in 
his  own  name,  without  joining  his  principal  in  the 
action.^  And  a  person  holding  a  mortgage  conditioned 
to  pay  an  annuity  in  certain  quantities  of  produce,  may 
foreclose  upon  a  breach  of  the  condition,  and  have  the 
premises  sold  for  the  amount  of  damages  that  he  may 
be  able  to  prove.^ 

If  the  mortgagee  has  assigned  the  bond  and  mort- 
gage absolutely  and  unconditionally,  he  has,  of  course, 
no  further  interest  in  it,  and  cannot,  even  nominally, 
be  plaintiff  in  an  action  to  foreclose.*  A  foreclosure  by 
a  mortgagee,  who  had  parted  with  all  his  interest  in 
the  bond  and  mortgage,  has  been  held  nugatorj^'^  And 
in  an  action  brought  by  a  mortgagee  "  for  the  use  of  his 
assignee,"  the  complaint  was  dismissed  for  the  reason 
that  the  assignee  was  not  made  a  party  and  that  the 
plaintiff  did  not  have  a  real  interest  in  the  action  f  but 

1  Hunsucker  v.  Smith,  49  Ind.  114  (1874). 

-  An  acceptor  of  a  bill  can  foreclose  after  payment,  Planters' 
Bank  v.  Douglass,  2  Head.  (Tenn.)  699  (1859) ;  so  can  a  surety  of 
a  note  after  payment,  Tilford  v.  James,  7  B.  Mon.  (Ky.)  337  (1847); 
McLean  v.  Ragsdale,  31  Miss.  701  (1856) ;  and  an  indorser,  Lewis 
V.  Starke,  10  S.  &  M.  (Miss.)  120  (1848). 

■^  Peterson  v.  Oleson,  47  Wis.  122  (1879),  citing  similar  cases. 
See  Morrison  v.  Morrison,  4  Hun  (N.  Y.),  410  ^875). 

*  Barraque  v.  Manuel,  7  Ark.  (2  Eng.)  516  (1847). 

■'  Call  V.  Leisner,  23  Me.  25  (1843);  Cushing  v.  Ayer,  25  id. 
383  (1845). 

6  Burton  v.  Baxter,  7  Blackf.  (Ind.)  297  (1844).     See  Winkel- 


12  PARTIES    TO    MORTGAGE    FORECLOSURES. 

where  an  assignment  was  defective,  the  action  was 
allowed  to  be  maintained  in  the  name  of  the  mortgagee.^ 
After  assignment,  the  mortgagee  is  neither  a  proper 
nor  a  necessary  defendant  to  the  action.- 

§  8.  Assignee,  sole  owner  of  mortgage,  may  foreclose. 

A  person  who  acquires  the  absolute  and  unconditional 
ownership  of  a  bond  and  mortgage  by  assignment  from 
the  mortgagee,  or  from  a  mesne  assignee,  may  maintain 
an  action  for  the  foreclosure  of  the  mortgage  f  he  is,  in- 
deed, the  only  possible  plaintiff,  as  he  has  "contracted  to 

man  v.  Riser,  27  111.  21  (1861);  Pryor  v.  Wood,  31  Penu.  St.  142 
(1858). 

1  Partridge  v.  Partridge,  38  Penu.  St.  78(1860),  distinguishing 
Pryor  v.  Wood,  supra. 

2  Whitney  v.  M'Kinney,  7  Johns.  Ch.  (N.  Y.)  144  (1823) ;  An- 
drews V.  Gillespie,  47  N.  Y.  487  (1872).  See  §§  8  and  76,  post, 
and  cases  cited. 

'^  Whitney  v.  M'Kinney,  7  Johns.  Ch.  (N.  Y.)  144  (1823) ; 
Christie  v.  Herrick,  1  Barb.  Ch.  (N.  Y.)  254  (1845);  Andrews  v. 
Gillespie,  47  N.  Y.  487  (1872);  Franklyn  v.  Hay  ward,  i^l  How. 
(N.  Y.)  43  (1881).  See  Allen  v.  Brown,  44  N.  Y.  228  (1870),  and 
Meeker  v.  Claghorn,  44  id.  349  (1871),  for  a  general  discussion 
of  the  rights  of  an  assignee  of  a  chose  in  action  to  maintain  a 
suit  in  "his  own  name.  BrowMi  v.  Suell,  6  Fla.  741  (1856);  Stro- 
ther  V.  Law,  54  111.  413  (1870);  Gould  v.  Newman,  6  Mass.  239 
(1810);  Hills  V.  Eliot,  12  Mass.  26  (1815);  Fisher  v.  Meister,  24 
Mich.  447  (1872);  McGuffey  v.  Finley,  20  Ohio  Rep.  474  (1851), 
relying  upon  Miller  v.  Bear,  3  Paige  (N.  Y.),  466  (1832),  ancl 
collating  authorities.  Horstman  v.  Gerker,  49  Penn.  282  (1865) ; 
Kinna  v.  Smith,  2  Green  (N.  J.  Eq.),  14  (1834),  where  the 
assignor  was  an  executor ;  Dolman  v.  Cook,  1  M'Carter  (N.  J. 
Eq.);  56  (1861);  Crooker  v.  Jewell,  31  Me.  306  (1850),  where  the 
assignor  was  an  administrator;  Knox  v.  Galligan,  21  Wis.  470 
(1867).  In  Douglass  V.  Durin,  51  Me.  121(1863),  the  assignor 
was  an  heir,  and  as  the  assignment  passed  no  title  to  the  as- 
signee, the  foreclosure  was  void.  In  Casper  v.  Munger,  62  Ind. 
481  (lb78),  the  assignee  of  a  mortgage,  given  to  indemnify  the 
mortgagee  against  certain  contingencies,  was  allowed  to  foreclose 
on  the  accruing  of  the  liability.  Wood  v.  Williams,  4  Madd. 
(Eng.)  186  (1819);  Jones,  §§  1373, 1377;  Fisher,  §  355. 


ASSIGNEE    OF    MORTGAGE    MAY    FORECLOSE.  13 

stand  in  the  place  of  the  original  mortgagee  and  of  all 
assignors."  No  other  person  can  be  interested  in  the 
mortgage  debt.  But  if  the  pretended  assignee  have  no 
title  whatever  to  the  mortgage,  a  foreclosure  conducted 
by  him,  is  absolutely  void  and  passes  no  title  to  the 
purchaser.^  It  has  been  held  that  if  the  husband  of  a 
married  woman  fails  to  unite  with  her  in  executing  an 
assignment  of  her  separate  bond  and  mortgage,  the 
assignee  will  not  obtain  a  title  upon  which  he  can  main- 
tain a  foreclosure.'  And  the  assignment  to  a  wife  of  a 
mortgage  executed  by  her  husband  upon  lands  which 
he  still  owned  at  the  time  of  the  assignment  has  been 
held  to  extinguish  the  debt,  so  that  no  action  would  lie  f 
but  in  New  York  and  most  states  such  an  assignment 
would  not  now  impair  the  security.  So  where  a  hus- 
band became  the  assignee  of  a  mortgage  executed  by 
himself  and  wife  upon  her  separate  real  estate,  he  was 
allowed  to  foreclose  it  as  a  valid  and  subsisting  lien.* 
The  assignee  of  a  land  contract  may  also  foreclose  by  an 
equitable  action  ;''  so  may  the  assignee  of  a  "  title  bond," 
which  is  much  in  the  nature  of  an  ordinary  land  contract.*' 
Mortgages  containing  a  power  of  sale  may  be  enforced 
*  by  an  assignee,  the  same  as  by  the  original  mortgagee." 
The  form  of  the  assignment  should   be  in  writing, 

1  Bolles  V.  Carli,  12  Minn.  113  (1866);  Gale  v.  Battin,  lb.  287 
(1867). 

2  Stoops  V.  Blackford,  27  Penn.  St.  213  (1856). 

3  Clarke  v.  Weutworth,  6  Me.  259  (1830). 

4  Faulks  V.  Dimock,  27  N.  J.  Eq.  65  (1876). 

5  Wright  V.  Troutman,  81  111.  374  (1876).  See  also  Hutchin- 
son V.  Crane,  100  id.  269  (1881). 

"  Semour  v.  Freeman,  Smith  (Ind.),  25  (1848-49). 

'  Mason  v.  Ainsworth,  58  111.  163  (1871) ;  Heath  v.  Hall,  60 
id.  344  (1871);  seemingly  cow/Ira,  Wilson  v.  Spring,  64  id.  14 
(1872);  Dempster  v.  West,  69  id.  613  (1873). 


14  PARTIES    TO    MORTGAGE    FORECLOSURES. 

but  that  is  not  indispensable.  A  parol  assignment 
will  give  the  assignee  such  an  equitable  interest  in 
the  mortgage  that  he  can  maintain  a  foreclosure  in  his 
own  name  ;^  and  mere  delivery  has  been  held  suffi- 
cient.- But  in  such  cases  the  assignor  has  been  held 
a  necessary  party ,^  and  it  would  certainly  be  unsafe  to 
omit  him.  In  Massachusetts  and  Maine  a  parol  assignee 
cannot  foreclose  in  his  own  name.^  A  quit-claim  deed 
from  the  mortgagee  has  been  held  to  work  an  equitable 
assignment  of  the  mortgage  to  the  grantee,^  and  in 
Maine  it  seems  to  be  a  common  form  of  assignment.^ 

The  assignee  of  one  of  several  notes  or  bonds  se- 
cured by  a  mortgage,  may  foreclose  the  mortgage  in 
his  own  name,'  for  the  reason  that  by  the  assign- 
ment of  the  note  he  acquires  an  equitable  interest  in 
the  mortgage,  and  pro  tanto  becomes  an  assignee  of  the 
mortgage.'^     In  many  states  the  courts  hold  that  the 

1  Clearwater  v.  Rose,  1  Blackf.  (Ind.)  137  (1821) ;  Slauarhter  v. 
Foust,  4  id.  379  (1837);  Green  v.  Marble,  37  Iowa,  95^(1873); 
Andrews  v.  McDaniel,  68  N.  C.  385  (1873) ;  Pease  v.  Warren, 
29  Mich.  9  (1874) ;  Denton  v.  Cole,  30  N.  J.  Eq.  244  (1878). 

2  Galway  v.  Fullerton,  2  C.  E.  Green  (17  N.  J.  Eq.),  390 
(1866).     See  §  16,  post,  last  paragraph. 

3  Denby  v.  Mellgrew,  58  Ala.  147  (1877). 

^  Adams  v.  Parker,  12  Gray  (Mass.),  53  (1858) ;  Prescott  v. 
Ellingwood,  23  Me.  345  (1843) ;  Smith  v.  Kelley,  27  id.  237  (1847). 

5  Billiard  v.  Hinckley,  5  Me.  272  (1828);  Carll  v.  Biitman, 
7  id.  102  (18.80) ;  Dorkray  v.  Noble,  8  id.  278  (1832) ;  Dixfield  v. 
Newton,  41  id.  221  (1856);  Johnson  v.  Leonards,  68  id.  237 
(1878) ;  Stewart  v.  Thompson,  3  Vt.  255  (1831). 

^  For  the  general  law  aflfectiiig  the  assignment  of  mortgages 
see  Thomas,  p.  101 ;  Jones,  §  786  ;  1  Hilliard,  530. 

■^  Stanley  v.  Beatty,  4  Ind.  134  (1853);  Hough  v.  Osborne,  7 
id.  140  (1855) ;  Gower  v.  Howe,  20  id.  396  (1863) ;  Swartz  v. 
Leist,  13  Ohio  St.  419  (1862) ;  Johnson  v.  Candage,  31  Me.  28 
(1849).     See  §  13,  j^o^i,  and  notes. 

8  Grattan  v.  Wiggins.  23  Cal.  16  (1863) ;  Brown  v.  Delaney, 
22  Minn.  349  (1876);  Andrews  v.  Fiske,  101  Mass.  422    (1869); 


WHEN    ASSIGNOR    A    NECESSARY    PARTY.  15 

assignee  of  a  note  acquires  only  a  pro  rata}  interest  in 
the  mortgage  security,  unless  the  contract  of  assign- 
ment otherwise  provides.^  But  all  courts  are  agreed 
that  the  assignee  obtains  such  an  interest  in  the  mort- 
gage that  he  can  maintain  a  foreclosure  and  sale  for  the 
recovery  of  his  part  of  the  debt. 

It  is  not  necessary  for  the  assignee  to  join  his  assignor 
with  him  as  a  co-plaintiff,  as  the  assignor  no  longer  has 
any  interest  in  the  bond  and  mortgage.  This  is  also 
true  where  it  is  the  assignor's  intention  simply  to 
authorize  the  assignee  to  collect  for  his  benefit  the 
moneys  secured  by  the  mortgage.'  Neither  is  it  neces- 
sary to  make  the  assignor,  under  either  of  such  circum- 
stances, a  party  defendant  to  the  action  ;*  but  if  an 
answer  is  pleaded,  setting  up  a  defense  growing  out  of 
the  bond  and  mortgage  while  in  the  hands  of  the 
assignor,  the  assignee  as  plaintiff  may  give  notice  to 
his  assignor  of  the  action,  and  offer  to  him  the  conduct 
of  the  defense  ;  upon  his  giving  such  notice  the  assignor 
is  bound  by  the  judgment  in  the  action,  whether  he 
undertakes  the  defense  or  not.^ 

After  an  absolute  assignment,  the  suit  cannot  ordi- 
narily be  prosecuted  by  the  assignee  in  the  name  of  the 
mortgagee,  for,  as  has  been  stated,  it  is  a  cardinal  prin- 

Anderson  v.  Baumgartner,  27  Mo.  Rep.  80  (1858) ;  Chappell  v. 
Allen,  38  id.  213  (1866) ;  Page  v.  Pierce,  6  Fost.  (26  N.  H.)  317 
(1853) ;  Furbush  v.  Goodwin,  5  id.  425  (1852).     Hee  §  13,  post. 

1  Keyes  v.  Wood,  21  Vt.  331  (1849);  Smith  v.  Day,  23 
id.  662  (1850) ;  Belding  v.  Manley,  21  id.  550  (1849) ;  Wright  v. 
Parker,  2  Aik.  (Vt.)  212  (1827). 

-  Langdon  v.  Keith,  9  Vt.  299  (1837) ;  Wright  v.  Parker, 
supra.     See  §  13,  post. 

3  Christie  v.  Herrick,  1  Barb.  Ch.  (N.  Y.)  254  (1845). 

•*  Thayer  v.  Campbell,  9  Mo.  Rep.  277  (1845).     See  §  76,  post. 

•>  Andrews  v.  Gillespie,  47  N.  Y.  487  (1872). 


16  PARTIES    TO    MORTGAGE    FORECLOSURES. 

ciple  of  foreclosures  that  they  must  be  brought  in  the 
name  of  the  real  party  in  interest.^  An  allegation,  in 
the  pleading  that  the  suit  is  for  the  benefit  of  the 
assignee  will  not  vary  the  rule ;-  and  where  an  assign- 
ment authorized  the  assignee  "  to  foreclose  or  release 
the  mortgage  at  pleasure,"  the  mortgagee  was  con- 
sidered such  a  necessary  party  to  a  foreclosure  that  the 
title  offered  at  the  sale  would  be  defective  without  him.^ 
Where  foreclosure  is  conducted  by  the  process  of  scire 
facias,  it  cannot  be  in  the  name  of  the  assignee,  but 
must  always  be  in  the  name  of  the  original  mortgagee.* 
It  may  be  remarked  here  that  the  assignee  of  a  bond 
and  mortgage  takes  it  subject  to  the  equities  between 
the  original  parties,  and  to  the  equities  which  third  per- 
sons could  enforce  against  the  assignor."^     The  assignee 

1  Winkelmau  v.  Kiser,  27  111.  21  (1861) ;  Irish  v.  Sharp,  89  id. 
261  (1878) ;  Pryor  v.  Wood,  31  Peiiu.  St.  142  (1858) ;  Graham  v. 
Newman,  21  Ala.  497  (1852).  For  cases  holding  that  the  suit 
may  be  maintained  in  the  name  of  the  mortgagee,  see  Hurd  v. 
Coleman,  42  Me.  182  (1856);  Holmes  v.  French,  70  id.  341 
(1879);  also  Gable  v.  Scarlett,  56  Md.  169  (1882),  indicating 
that  the  rule  is  fixed  by  statute.  In  Calhoun  v.  Tullass,  35  Ga. 
119  (1866),  an  assignee  was  allowed  to  foreclose  in  the  name  of 
the  mortgagee,  and  against  his  will,  on  giving  him  an  indemnify- 
ing undertaking  against  costs  and  damages.  See  §  7,  ante,  and 
notes. 

2  Prior  V.  Wood,  31  Penn.  St.  142  (1858),  distinguished  in 
Partridge  v.  Partridge,  38  id.  78  (1860),  where  the  assignment 
was  defective  and  the  assignor  foreclosed  for  the  benefit  of 
the  assignee.  See  Clow  v.  Derby  Coal  Co.,  98  Penn.  432  (1881), 
which  seems  contrary  iu  practice  to  the  other  Pennsylvania  cases 
cited.     See  §  7,  ante. 

3  Wright  V.  Sperry,  21  Wis.  331  (1867). 

^  Olds  V.  Cummings,  31  111.  188  (1863) :  Camp  v.  Small,  44  id. 
37  (1867) ;  Bourland  v.  Kipp,  55  id.  376  (1870). 

■'  Ingraham  v.  Disborough,  47  N.  Y.  421  (1872);  Schafer  v. 
Reilly,  50  id.  61  (1872);  Greene  v.  Warnick,  64  id.  220  (1876), 
reversing  4  Hun,  703 ;  Trustees  of  Union  College  v.  Wheeler, 
61  N.  Y.  88,  99,  104  (1874),  affirming  5  Lans.  160 ;  S.  C,  59  Barb. 


FORECLOSURE  BY  JOINT  MORTGAGEES.         17 

can  generally  receive  no  better  title  than  his  assignor 
possessed  ;^  but  the  rule  is  limited  where  the  mortgage 
is  given  to  secure  a  negotiable  note.'-  For  these  rea- 
sons it  is  often  prudent  to  make  the  assignor  a  party 
defendant."  The  assignee  also  takes  and  may  enforce 
all  the  collateral  securities  which  his  assignor  holds.* 

§  9.  Joint  mortgagees ;  any  one  or  more  may  foreclose. 

Where  a  bond  and  mortgage  have  been  executed,  or 
assigned,  to  two  or  more  persons  jointly,  or  are  held  by 
them  in  any  way  jointly,  they  may  unite  as  co-plaintiffs 
in  a  foreclosure  ;  or  any  one  or  more  of  them  may  main- 
tain the  action  without  joining  the  others  as  co-plaintiffs.^ 

(N.  Y.)  385,  opinion  per  Theodore  W,  Dwight,  C,  collating  and 
reviewing  the  authorities  at  length.  See  Crane  v.  Turner,  67 
N.  Y.  437  (1876),  and  Davis  v.  Bechstein,  69  id.  440,  442  (1877), 
p&n'  Church,  Ch.  J. 

1  This  proposition  was  questioned  as  to  a  bona  fide  purchaser 
for  a  valuable  consideration  by  Comstock,  J.,  in  McLallen  v. 
Jones,  20  N.  Y.  162  (1859).  See  Bush  v.  Lathrop,  22  id.  535, 
537,  550  (1860),  per  Denio,  J.,  who  examined  and  repudiated  the 
supposed  distinction  between  "latent"  equities,  so  called,  and 
those  existing  between  the  original  parties  to  the  instrument ; 
but  this  case  was  overruled  in  Moore  v.  Metropolitan  Nat.  Bank, 
55  id.  41,  49  (1873),  opinion  per  Grover,  J. ;  Allen,  J.,  dis- 
sented. See  also  the  later  cases  cited  above.  Woodruff  v. 
Depue,  1  McCarter  (14  N.  J.  Eq.),  168  (1861) ;  Lee  v.  Kirkpat- 
rick,  lb.  264 ;  Rose  v.  Kimball,  1  C.  E.  Green  (16  N.  J.  Eq.),  185 
(1863) ;  Kamena  v.  Huelbig,  23  N.  J.  Eq.  78  (1872).  In  Mott 
V.  Clark,  9  Penn.  St.  399  (1848),  it  was  held  that  the  assignee 
did  not  take  subject  to  the  latent  equities  of  third  persons.  See 
Atwater  v.  Underbill,  22  N.  J.  Eq.  599  (1872).) 

2  Carpenter  v.  Longan,16  Wall.  (U.  S.)  271  (1872). 
•"^  See  §  76,  post. 

*  Philips  V.  Bank  of  Lewistown,  18  Penn.  St.  394  (1852). 

^  Sanford  v.  Bulkley,  30  Conn.  344  (1862) ;  Baker  v.  Shephard, 
30  Ga.  706  (1860) ;  Gleises  v.  Maignan,  3  La.  530  (1832) ;  Patou 
v.  Murray,  6  Paige  (N.  Y.),  474  (1837) ;  Hopkins  v.  Ward,  12 
B.  Mon.  (Ky.)  185  (1851);  Brown  v.  Bates,  55  Me.  520  (1868); 
Jones,  §  1381. 

2 


18  PARTIES    TO    MORTGAGE    FORECLOSURES. 

A  joint  foreclosure  has  been  allowed  where  the  mort- 
gage was  joint  in  form,  but  given  to  secure  certain  debts 
in  severalty.^  It  is  quite  well  settled  that  in  such  cases 
all  the  parties  interested  in  the  mortgage  must  be 
brought  before  the  court  as  plaintiffs  or  defendants  f  so, 
in  an  action  to  redeem,  all  the  mortgagees  are  necessary 
parties.'"  Where  a  note  and  mortgage  had  been  exe- 
cuted by  thirteen  persons  to  three  of  their  number,  the 
three  were  allowed  to  foreclose  against  the  other  ten 
for  ten-thirteenths  of  the  debt.^  But  before  any  person 
who  is  jointly  interested  with  others  in  a  mortgage  debt 
can  be  made  a  defendant,  he  must  be  requested  to  unite 
as  a  co-plaintiff.^ 

The  same  rules  hold  true  when  the  joint  mortgagees 
hold  the  mortgage  in  a  representative  or  official  capacity. 
A  mortgagee,  by  his  will,  appointed  his  mortgagor  and 
another  person  his  executors ;  the  second  executor  was 
entitled  to  foreclose  against  his  co-executor,  the  mort- 
gagor, making  him  a  defendant  individually  and  as 
executor,  upon  the  principle  that  one  co-executor  may 
maintain  an  action  in  equity  against  another  co-executor 
to  compel  the  payment  of  a  debt  owing  by  him  to  the 
estate.*'  A  mortgagee  may  also  foreclose,  though  he 
has  with  others  been  made  an  assignee  of  the  mortgagor 

'    1  Shirkey  v.  Hanna,  3  Blackf.  (hid.)  403  (1834). 
^2  Hopkins  V.  Ward,  12  B.  Mon.  (Ky.)  185  (1851);  seemingly 
contra,  Piatt  v.  »quire,  12  Mete.  (Mass.)  494,  501  (1847),  holding 
that  where  one  joint  mortgagee  begins  a  foreclosure,  it  is  not 
necessary  to  bring  the  others  into  the  action.     See  §  3,  ante. 

^  Woodward  v.  Wood,  19  Ala.  213  (1851). 

^  McDowell  V.  Jacobs,  10  Cal.  387  (1858). 

•'■  See  §  6,  ante;  NeAv  York  Code,  §  448. 

^  McGregor  v.McGresror,  35  N.  Y.  218  (1866);  Lawrence  v. 
Lawrence,  3  Barb.  Ch.  (N.  Y.)  71  (1848). 


FORECLOSURE  OF  MORTGAGE  TO  PARTNERS.      19 

for  the  benefit  of  creditors.^  And  the  fact  that  a  per- 
son owns  an  undivided  part  of  certain  premises,  and 
at  the  same  time  holds  a  mortgage  on  another  undivided 
part,  will  not  prevent  his  foreclosing.'- 

§  10.  Partners  ;  any  one  or  more  may  foreclose. 

Partners  may  unite  in  the  foreclosure  of  a  mortgage 
held  by  them  as  a  part  of  their  joint  capital,  or  any  one 
of  them  may  bring  the  action  as  sole  plaintiff.  If  any 
of  the  partners  refuse  to  join  as  co-plaintiffs,  the  courts 
generally  require  them  to  be  brought  in  as  defendants ; 
but  it  must  appear  in  the  pleadings,  and  be  a  fact,  that 
the  co-partners  have  refused  to  become  co-plaintiffs,  be- 
fore they  can  be  made  defendants  to  the  action.^  Even 
where  a  mortgage  was  executed  to  one  member  of  a 
co-partnership  to  secure  a  partnership  debt,  all  the  part- 
ners were  deemed  necessary  parties  to  an  action  for 
foreclosure/  It  would  seem,  however,  that  if  a  mort- 
gage is  held  by  one  of  the  partners  as  a  trustee  for  the 
partnership,  he  can  foreclose  without  in  any  way  bring- 
ing the  other  partners  into  the  action.'^  In  case  of  the 
death  of  a  partner  pending  foreclosure,  a  bill  of  revivor 
against  his  personal  representatives  is  unnecessary,  the 
survivors  taking  the  entire  legal  title  to  the  bond  and 
mortgage  under  the  doctrine  of  survivorship  in  joint 
tenancy.^ 

1  Patou  V.  Murray,  6  Paige  (N.  Y.),  474  (1837). 

-  Baker  v.  8hephard,  30  Ga.  706  (1860) ;  Gleises  v.  Maignari, 
3  La.  530  (1832). 

•'  Jewell  V.  West  Orange,  36  N.  J.  Eq.  403  (1883) ;  New  York 
Code,  §  448. 

4  De  Greiff"  v.  Wilson,  30  N.  J.  Eq.  435  (1879) ;  Noyes  v.  Saw- 
yer, 3  Vt.  160  (1831). 

•'  Hhelden  v.  Bennett,  44  Mich.  634  (1880). 

"  Roberts  v.  .Stigleman,  78  111.  120  (1875).     See  §  11,  post. 


20  PARTIES    TO    MORTGAGE    FORECLOSURES. 

§  11.  Joint  mortgagees,  one  dying ;   doctrine  of  surviv- 
orship. 

It  seems  quite  well  established  that  the  doctrine  of 
joint  tenancy  and  survivorship,  as  applied  to  the  tenure 
of  lands,  is  also  applicable  to  the  joint  ownership  of 
choses  in  action,  including  mortgages.  In  People  v. 
Keyser}  Selden,  J.,  says :  "  There  was  never  any  doubt 
that  the  entire  legal  interest  remained  in  the  survivor. 
The  only  doubt  was,  whether  the  survivor  did  not  take 
the  whole  interest,  legal  and  equitable,  according  to  the 
rule  of  survivorship  applied  to  a  joint  tenancy  in  lands ; 
but  it  was  finally  held,  the  case  of  Peiiy  v.  Styward  (1 
Eq.  Cas.  Abr.  290)  being  the  leading  case,  that  although 
the  entire  legal  interest  vested  in  the  survivor,  he  was 
to  be  regarded  in  equity  as  a  trustee  for  the  personal 
representatives  of  deceased  parties  for  their  equal 
shares."  It  is  also  well  settled  that  upon  the  death  of 
a  partner  the  surviving  partners  take  the  legal  title  to 
the  property  of  the  partnership  for  the  purpose  of  set- 
tling its  affairs. 

The  courts  have  accordingly  deduced  the  rule  that 
upon  the  death  of  one  of  a  number  of  joint  owners  of 
a  mortgage,  the  surviving  owners  can  foreclose  it  with- 
out bringing  the  personal  representatives  or  heirs  of  the 
deceased  joint  mortgagee  into  the  action.-     It  has  been 

1  28  N.  Y.  226,  236  (1863),  citing  1  Chitty  on  Pleading,  19,  20 ; 
Rolls  V.  Yate,  Yelv.  (Eng.)  177,  note  1  ;  2  Fonbl.  Eq.  103,  and 
notes. 

-  Erwin  v.  Ferguson,  5  Ala.  158  (1843) ;  Milroy  v.  Stockwell, 
1  Ind.  35  (1848);  McAllister  v.  Plant,  54  Miss.  106  (1876); 
Lannay  v.  Wilson,  30  :\Id.  536  (1869) ;  Martin  v.  McReynolds,  6 
Mich.  70  (1858) ;  Blake  v.  Sanborn,  8  Gray  (Mass.),  154  (1857); 
Hansen  v.  Gregg,  7  Tex.  225  (1851).  See  §§  24  and  25,  post. 
Contra,  Fisher,  §  361 ;  Vickers  v.  Cowell,  1  Beav.  (Eng.)  529 
(1839). 


JOINT    MORTGAGEES,    SURVIVORSHIP.  21 

explicitly  held,  that  "  a  suit  upon  a  mortgage  to  obtain 
a  foreclosure,  may  be  brought  and  maintained  by  the 
surviving  mortgagee."^  Where  a  mortgage  had  been  exe- 
cuted to  a  husband  and  wife,  she  was  allowed  to  foreclose 
upon  his  death,  without  bringing  his  personal  representa- 
tives into  the  action.'^  There  can  be  no  harm,  however,  in 
making  the  personal  representatives  of  a  deceased  joint 
mortgagee  parties  defendant  to  the  action,  for  if  a  con- 
test as  to  the  ownership  of  the  mortgage  should  arise, 
they  would  then  be  concluded  by  the  decree  of  fore- 
closure;'^ furthermore,  they  have  an  equitable  interest 
in  the  proceeds  of  the  foreclosure,  a  portion  of  which 
must  ultimately  come  into  their  hands  for  distribution. 
In  New  Jersey  the  personal  representatives  of  a  deceased 
joint  mortgagee  are  considered  indispensable  parties  to 
a  foreclosure  by  the  survivors  ;*  they  may  be  united  as 
co-plaintiffs  or  made  defendants.^  And  where  a  per- 
sonal representative  commences  the  action,  the  joint 
survivors  are  necessary  parties.  Thus,  where  a  mort- 
gage had  been  executed  to  a  husband  and  wife,  and 
after  the  husband's  death  foreclosure  was  brought 
by  the  assignee  of  his  administrator,  the  widow  was 
held  erroneously  omitted.''     The  rules  of  this  section 

1  Williams  v.  Hilton,  35  Me.  547  (1853).  See  also  Kinsley  v. 
Abbott,  19  id.  430,  433,  opinion  per  Shipley,  J.  In  Penn  v.  But- 
ler, 4  Dallas  (U.  S.),  354  (1801),  the  court  say  that  the  surviving 
obligee  and  mortgagee  "was  entitled  to  the  possession  of  the  joint 
securities,  and  that  he  might  recover  their  amount." 

-  McMillan  v.  Mason,  5  Coldwell  (Tenn.),  263  (1868) ;  Lannay 
v.  Wilson,  30  Md.  536  (1869). 

''"•  Freeman  v.  Scofield,  16  N.  J.  Eq.  28  (1868). 

*  Smith  V.  Trenton  Delaware  Falls  Co.,  3  Green  (N.  J.  Eq.), 
505  (1845),  followed  in  Mutual  Life  Ins.  Co.  v.  Sturges,  32  N.  J. 
Eq.  678,  683  (1880),  explaining  the  reason  for  the  rule. 

^  Freeman  v.  Scofield,  16  N.  J.  Eq.  28  (1863). 

6  Savings  Bank  v.  Freese,  26  N.  J.  Eq.  453  (1875). 


22  PARTIES    TO    MORTGAGE    FORECLOSURES. 

apply  also  to  the  joint  assignees  of  a  mortgage ;  and 
indeed  to  joint  owners  generally,  whatever  may  have 
been  the  source  of  their  title  to  the  mortgage.^ 

§  12.  Mortgagees,  owners  in  severalty ;  any  one  or  more 
may  foreclose. 

Any  one  or  more  of  a  number  of  owners  of  a  mortgage, 
each  of  whom  holds  a  specific  interest  therein  in  severalty, 
may  bring  an  action  to  foreclose  the  mortgage,  making 
defendants  such  other  owners  as  do  not  consent  to  become 
co-plaintiffs  ;-  likewise  all  the  owners  may  unite  as  co- 
plaintiffs.^  Where  a  mortgage  is  owned  in  severalty,  it 
is  indispensable  that  all  the  interests  be  represented  in 
the  action  to  foreclose.*  And  even  though  debts  in 
severalty  be  secured  by  a  joint  mortgage,  any  creditor 
may  maintain  a  foreclosure,  as  in  the  case  of  a  several 
mortgage,  but  the  other  creditors  are  absolutely  neces- 
sary parties  as  co-plaintiffs  or  defendants  f  a  joint  bill 
for  foreclosure  is  also  allowable.*'  Upon  the  death  of 
any  of  the  owners  in  severalty,  his  personal  represen- 
tatives must  be  brought  before  the  court."  The  decree 
for  foreclosure  should  be  for  the  payment  to  the  several 

1  Martin  v.  McReynolds,  6  Mich.  70  (1858). 

2  Porter  V.  Clements,  3  Ark.  364,  380  (1839),  where  the  question 
of  parity  of  interest  in  the  action  is  considered  at  length ;  Brown 
V.  Bates,  55  Me.  520  (1868). 

3  Stevenson  v.  Mathers,  67  111.  123  (1873),  where  the  action 
was  to  foreclose  a  land  contract. 

4  Railroad  Co.  v.  Orr,  18  Wall.  (U.  S.)  471  (1873). 

5  Tyler  v.  Yreka  Water  Co.,  14  Cal.  212  (1859).  See  Howe 
V.  Dibble,  45  Ind.  120  (1873) ;  Moffitt  v.  Roche,  76  id.  75  (1881) ; 
^tna  Life  Ins.  Co.  v.  Finch,  84  id.  301  (1882).     See  §  9,  ante. 

6  Shirkey  v.  Hanna,  3  Blackf.  (Ind.)  403  (1834). 

7  Burnett  v.  Pratt,  22  Pick.  (Mass.)  556  (1839);  Vickers  v. 
Cowell,  1  Beav.  (Eng.)  529  (1839):  Fisher,  §§  349,  361. 


FORECLOSURE    OF    ONE    OF    SEVERAL    NOTES.  23 

owners  of  the  sums  respectively  due  to  each.^  Where 
mortgagees  hold  separate,  but  simultaneous  and  equal 
mortgages,  they  may  unite  as  co-plaintifFs,  or  any  one 
may  foreclose,  making  the  others  defendants,  as  though 
there  were  but  one  mortgage  in  which  they  held  several 
interests.'^ 

§  13.  OTvner  of  one  of  several  notes  secured  by  a  mort- 
gage may  foreclose. 

In  most  of  the  Western  and  in  some  of  the  Eastern 
states,  notes  with  interest  coupons,  instead  of  a  bond, 
are  given  as  the  instrument  of  indebtedness.  In  order 
to  facilitate  their  negotiability  as  investments  a  number 
of  notes  are  often  given  instead  of  one.  In  these  states 
numerous  decisions^  have  been  rendered,  fixing  the 
legal  status  of  such  notes,  and  the  remedies  and  pro- 
cedure of  owners  for  their  collection.  As  the  general 
result  it  may  be  stated  that  an  action  at  law  may  be 
maintained  by  the  holder  of  any  note  as  upon  an  ordi- 

1  Higgs  V.  Hanson,  13  Nev.  356  (1878). 

2  Cochran  v.  Goodell,  131  Mass.  464  (1881).  See  §§  20  and  81, 
post. 

3  Rankin  v.  Major,  9  Iowa.  297  (1859);  Lyster  v.  Brewer,  13 
id.  461  (1862);  Sangster  v.  Love,  11  id.  580  (1861);  Barrett  v. 
Blackmar,  47  id.  569  (1877);  Goodall  v.  Mopley,  45  Ind.  355 
(1873) ;  Stanley  v.  Beatty,  4  id.  134  (1853) ;  Merritt  v.  Wells,  18 
id.  171  (1862) ;  Ross  v.  Utter,  15  111.  402  (1854) ;  Myers  v.  Wright, 
33  id.  284  (1864) ;  Pogue  v.  Clark,  25  id.  351  (1861) ;  Wilson  v. 
Hay  ward,  2  Fla.  27  (1848) ;  Wiley  v.  Pinson,  23  Tex.  486  (1859) ; 
Hartwell  v.  Blocker,  6  Ala.  581  (1844) ;  Johnson  v.  Brown,  31 
N.  H.  405  (1855) ;  Pettibone  v.  Edwards,  15  Wis.  95  (1862) ; 
Jenkins  v.  Smith,  4  Mete.  (Ky.)  380  (1863) ;  Bell  v.  Shrock,  2  B. 
Mon.  (Ky.)  29  (1841) ;  Swenson  v.  Moline  Plow  Co.,  14  Kan.  387 
(1875) ;  Haynes  v.  Wellington,  25  Me.  458  (1845) ;  Johnson  v. 
Candage,  31  id.  28  (1849) ;  Moore  v.  Ware,  38  id.  496  (1854) ; 
Jordon  v.  Cheney,  74  id.  359  (1883). 


24  PARTIES    TO    MORTGAGE    FORECLOSURES. 

nary  promissory  note.  Or  the  holder  of  any  one  of 
a  number  of  the  notes  may  proceed  in  the  first  instance 
by  a  suit  in  equity,  as  in  an  ordinary  foreclosure ;  but 
he  must  bring  all  the  other  mortgagees  and  holders  of 
notes  secured  by  the  mortgage  into  court,  before  a 
decree  can  be  made.^  It  is  peculiar  that  two  holders  of 
notes  cannot  join  as  plaintiffs ;  each  one  holds  an  inter- 
est in  the  mortgage  pro  tanto  for  his  own  note.  But 
where  one  person  holds  two  or  more  notes,  he  may  fore- 
close them  in  the  same  action;-  in  New  Hampshire, 
on  the  other  hand,  foreclosure  by  a  writ  of  entry  cannot 
be  maintained  unless  all  the  holders  of  notes  unite  as 
plaintiifs,''  and  then,  it  would  seem,  only  after  all  the 
notes  have  become  due/ 

All  holders  of  notes  must  be  brought  into  the  action,^ 
so  that  the  amounts  and  priorities  of  their  several 
claims  may  be  determined,  for  it  is  another  peculiarity 
of  these  notes  in  some  states  that  they  are  entitled  to 
payment  in  the  order  in  which  they  fall  due,  and  their 
respective  priorities  as  liens  on  the  mortgaged  premises 

1  King  V.  Merchants'  Exchange  Co.,  5  N.  Y.  547,  556  (1851); 
Pugh  V.  Holt,  27  Miss.  (5  Cush.)  461  (1854) ;  Archer  v.  Jones,  26 
id.  583  (1853).  See  also  the  cases  cited  in  the  first  note  to  the 
section. 

2  Myers  v.  Wright,  33  111.  284  (1864).     See  §  12,  ante. 
■^  Noyes  v.  Barnet,  57  N.  H.  605  (1876). 

4  Hunt  V.  Stiles,  10  N.  H.  466  (1839). 

5  Myers  v.  Wright,  33  111.  284  (1864).  See  notes  1  and  8,  et 
seg.  But  in  Thayer  v.  Campbell,  9  Mo.  Rep.  277  (1845),  it  was 
held  that  the  holders  of  other  notes  were  not  necessary  parties  to 
the  action,  but  that  they  might  come  in  on  their  own  motion.  But 
see  the  later  cases  of  Mitchell  v.  Ladew,  36  Mo.  Rep.  526  (1865), 
approved  and  followed  in  Thompson  v.  Field,  38  id.  320  (1866) ; 
Mason  v.  Barnard,  36  id.  384  (1865) ;  Hurck  v.  Erskine,  45  id. 
484  (1870). 


RIGHTS    OF    OWNERS    OF    NOTES.  25 

follow  the  same  order.  This  rule  obtains  in  Alabama/ 
Florida,'-  Illinois,^  Indiana,^  lowa,'^  Kansas,''  Missouri,'^ 
New  Hampshire,'-  Ohio,-'  Virginia,  West  Virginia  and 
Wisconsin.^*^  The  principle  upon  which  it  proceeds  is 
potior  in  tefnpore,  potior  in  jure.  Justice  Walker,  in  Preston 
V.  Hogden,^'"  concisely  stated  the  rule  adopted  in  these 

1  Cullum  V.  Erwin,  4  Ala.  4.52  (1842),  explaining  Bloodgood  v. 
McVay,  9  Port.  (Ala.)  547  (1839) ;  Bank  of  Mobile  v.  P.  and  M. 
Bank,  9  Ala.  645  (1846). 

2  Cotton  V.  Blocker,  6  Fla.  1  (1855). 

3  Funk  V.  McReynolds,  33  111.  481  (1864) ;  Flower  v.  Elwood, 
66  id.  438  (1872) ;  Herrington  v.  McColIum,  73  id.  476  (1874) ; 
Koester  v.  Burke,  81  id.  436  (1876);  Preston  v.  Hodgen,  50  id. 
m  (1869) ;  Humphreys  v.  Morton,  100  id.  592  (1881). 

*  Stanley  v.  Beatty,  4  Ind.  134  (1853) ;  State  Bank  v.  Tweedy, 
8  Blackf.  (Ind.)  447  (1847) ;  Hough  v.  Osborne,  7  Ind.  140  (1855), 
followed  in  Harris  v.  Harlan,  14  id.  439  (1860) ;  Evansville, 
People's  S.  Bank  of,  v.  Finney,  63  id.  460  (1878)  ;  Murdock  v. 
Ford,  17  id.  52  (1861) ;  Sample  v.  Rowe,  24  id.  208  (1865) ;  Doss 
V.  Ditmars,  70  id.  451  (1880) ;  Gerber  v.  Sharp,  72  id.  554  (1880), 

■'  Walker  v.  Schreiber,  47  Iowa,  529  (1877),  and  the  cases  cited 
in  the  first  note  to  the  section. 

«  Richardson  v.  McKim,  20  Kan.  346  (1878). 

'  Mitchell  V.  Ladew,  36  Mo.  Rep.  526  (1865);  Mason  v.  Bar- 
nard, 36  id.  384  (1865) ;  Thompson  v.  Field,  38  id.  320  (1866) ; 
Hurck  V.  Erskine,  45  id.  484  (1870). 

8  Johnson  v.  Brown,  31  N.  H.  405  (1855);  Noyes  v.  Barnet, 
57  id.  605  (1876) ;  Hunt  v.  Stiles,  10  id.  466  (1839). 

9  Bank,  U.  S.  v.  Covert,  13  Ohio  Rep.  240  (1844) ;  Winters  v. 
Bank,  33  Ohio  St.  250  (1 877) ;  Bushfield  v.  Meyer,  10  id.  334  (1859). 

30  Wood  V.  Trask,  7  Wis.  566  (1859) ;  Marine  Bank  v.  Inter- 
national Bank,  9  id.  57  (1859);  Pierce  v.  Shaw,  51  id.  316  (1881). 

11  50  111.  56,  59  (1869) ;  the  same  in  Murdock  v.  Ford,  17  Ind. 
52  (1861) ;  Gerber  v.  Sharp,  72  id.  554  (1880),  and  cases  cited. 
See  also  Smith  v.  Stevens,  49  Conn.  181  (1881).  In  Sargent  v. 
Howe,  21  111.  148  (1859),  A.  executed  three  notes  to  B.  and  con- 
veyed property  in  trust  to  C.  to  secure  their  payment;  B. 
assigned  two  of  the  notes  to  D.  It  was  held  that  the  assignment 
carried  the  security  with  it  as  an  incident  to  the  debt,  and  that 
D.,  by  an  equity  action,  could  compel  the  trustee  to  sell  enough 
of  the  property  to  pay  his  notes.     The  assignment  in  such  cases 


26  PARTIES    TO    MORTGAGE    FORECLOSURES. 

states :  "  The  assignment  of  each  note  operates  as  an 
assignment  pro  tanto  of  the  mortgage,  and  by  each 
assignment  it,  in  effect,  becomes  ^o  many  separate 
mortgages  to  secure  the  several  notes  in  the  order  of 
their  maturity."  But  where  all  the  notes  mature  at 
the  same  time,  they  are  equal  liens;'  and  if,  by  the 
terms  of  the  notes  and  mortgage,  defliult  in  the  pay- 
ment of  the  first  note  or  of  the  interest,  when  due, 
renders  all  the  notes  due  and  payable,  they  become 
equal  liens  upon  defjiult,  and  are  payable  pro  rata 
instead  of  pro  tanto  from  the  proceeds  of  a  sale."- 

NeiD  York  and  other  states  —  rule  pro  rata.  —  But  in 
New  York,'   New  Jersey,^  Pennsylvania,'^  Minnesota,'^ 

is  pro  tanto,  not  pro  rata  ;  the  notes  must  be  paid  in  the  order  in 
which  they  mature,  as  they  have  priority  as  liens  in  that  order. 
See  Vansant  v.  Allmon,  23  111.  30,  34  (1859). 

1  Humphreys  v.  Martin,  100  111.  592  (1881). 

-  Bank,  U.  S.,  v.  Covert,  13  Ohio  Rep.  240  tl844);  Winters  v. 
Bank,  33  Ohio  iSt.  250  (1877);  Bushfield  v.  Mayer,  10  id. 
3.!4  (1859),  supported  in  point  by  Pierce  v.  Shaw,  51  Wis.  316 
(1881);  Phelan  v.  Olney,  6  Gal.  478  (1856) ;  Grattan  v.  Wiggins, 
23  id.  16  (1&63).  Contra,  holding  that  the  notes  must  be  paid  in 
the  order  of  their  maturity.  Mason  v.  Barnard,  36  Mo.  Rep.  384 
(1865) ;  Hurck  v.  Erskine,  45  id.  484  (1870). 

'■^  Granger  v.  Crouch,  86  N.  Y.  494,  499  (1881) ;  Bridenbecker 
V.  Lowelir32  Barb.  (N.  Y.)  9  (1860). 

■i  Collerd  v.  Huson,  34  N.  J.  Eq.  38  (1881).  See  the  note  to 
the  case,  giving  a  full  collation  of  authorities. 

•^  Perry's  Appeal,  22  Penn.  St.  43  (1853),  where  four  bonds 
and  mortgages,  simultaneous  in  execution  and  record,  but  due 
in  successive  years,  were  held  to  be  equal  liens  and  to  share  pro 
rata;  cases  collated.  The  rule  was  also  applied  where  all  the 
bonds  matured  at  the  same  time.  Hodge's  Appeal,  84  Penn. 
359  (1877). 

6  Wilson  v.  Eigenbrodt,  30  Minn.  4  (1882).  See  the  able  and 
ingenious  opinion  of  Mitchell,  J.,  holding  this  to  be  the  rule  for 
Minnesota  unless  a  contract  to  a  different  effect  is  expressed  in 
the  mortgage. 


OWNERS    OF    NOTES,    NECESSARY    PARTIES.  27 

Michigan/  Mississippi,-  Kentucky,^  and  Vermont^  the 
the  rule  has  been  adopted  that  bonds  and  notes,  matur- 
ing at  different  times  and  secured  by  a  single  mortgage, 
are  equal  and  concurrent  liens  and  entitled  to  the  security 
pro  rata.  In  a  recent  case  in  New  York,^  where  mort- 
gages were  simultaneously  executed  and  recorded,  but 
matured  at  diiferent  times.  Judge  Finch,  of  the  Court 
of  Appeals,  decided  that  the  one  falling  due  first  had  no 
priority  of  lien  ;  and,  after  collating  and  reviewing  the 
cases  in  the  Western  states,  disapproved  the  proposition 
established  in  so  many  of  them,  that  different  obliga- 
tions maturing  at  different  times  have  priority  of  security 
according  to  the  order  of  their  maturity.  Whichever 
rule  is  adopted,  all  holders  of  notes  and  bonds  are  indis- 
pensable parties  to  a  foreclosure  of  the  mortgage,  in 
01  ier  to  produce  a  perfect  title  at  the  sale.  It  may 
be  observed  here  that  questions  affecting  the  rights  of 
holders  of  bonds  given  with  railroad  mortgages  are  not 
within  the  scope  of  this  work,  and  the  reader  is  referred 
to  text-books  treating  specially  of  railway  securities 
and  kindred  subjects.** 

1  McCurdy  V.  Clark,  27  Mich.  445  (1873);  Wilcox  v.  Allen, 
36  Mich.  160  (1877). 

-  Trustees  Jefferson  Colle2;-e  v.  Prentiss,  7  C.  (Miss.)  46  (1855); 
Terry  v.  Woods,  6  8.  &  M.  fMiss.)  139  (1846);  Cage  v.  Her,  5  id. 
410  (1845);  Henderson  v.  Herrod,  10  id.  631  (1846);  Dick  v. 
Mawry,  9  id.  448  (1848) ;  Bank  of  England  v.  Tarleton,  1  C. 
(Miss.)  173  (1851) ;  Parker  v.  Mercer,  6  H.  (Miss.)  320  (1842). 

3  Campbell  v.  Johnston,  4  Dana  (Ky.),  182  (1836). 

4  Keyes  v.  Wood,  21  Vt.  331  (1849);  Belding  v.  Manly,  21  id. 
550  (1849) ;  Wright  v.  Parker,  2  Aik.  (Vt.)  212  (1827). 

•^  Granger  v.  Crouch,  86  N.  Y.  494,  499  (1881);  in  point  and 
similar,  Collerd  v.  Huson,  34  N.  J.  Eq.  38  (1881).     See  §  20,  post. 
^  Jones  on  Railway  Securities. 


28  PARTIES    TO    MORTGAGE    FORECLOSURES. 

§  14.  Owner  of  mortgage,  having  pledged  the  same   as 
collateral  secmity,  may  foreclose. 

Where  the  owner  of  a  mortgage  has  pledged  it  as 
collateral  security  for  a  debt  of  less  amount  than  the 
mortgage,  he  still  has  such  an  interest  in  it  as  entitles 
him  to  bring  an  action  for  the  foreclosure  of  the  mort- 
gao-e.  Vice-Chancellor  McCoun  held,  in  Norton  v. 
Warner,^  that  "  the  complainant  had  not  divested  him- 
self of  all  interest  in  or  control  over  the  mortgage.  The 
assignment  is  but  a  partial  one,  made  to  secure  to  the 
pledgee  the  payment  of  a  loan,  being  less  than  the 
amount  due  on  the  mortgage.  In  equity,  he  is  still  the 
owner,  subject  only  to  the  lien  or  pledge  for  the  loan. 
The  pledgee  might  have  filed  a  bill  of  foreclosure  against 
the  original  mortgagor  and  all  parties  in  interest,  and 
in  that  case  the  pledgee  would  have  been  deemed  a 
trustee  for  the  mortgagee,  for  all  of  the  mortgage  debt 
after  satisfying  his  claim;  and  upon  the  pledgee's  refusal 
to  proceed — and  which  the  bill  alleges — I  see  no  good 
reason  why  the  camplainant  might  not  proceed,  as  he 
has  done,  to  foreclose." 

But  in  such  an  action  the  pledgee  is  a  necessary 
party,'-  and  may  be  made  a  co-plaintiff,'^  or  a  defendant ; 
neither  the  mortgagor,  nor  any  person  other  than  the 

1  3  Edw.  Ch.  (N.  Y.)  106  (1837);  Siinson  v.  Satterlee,  64  N. 
Y.  657  (1876),  affirming  6  Hun,  305.  In  point,  Brnnette  v. 
Schettler,  21  Wis.  188  (1866);  George  v.  Woodward,  40  Vt.  672 
(1868) ;  McKinney  v.  Miller,  19  Mich.  142  (1869) ;  Sinking  Fund 
Com'rs  V.  Northern  Bank,  1  Mete.  (Ky.)  174  (1858).  See  §§  15, 
78,  79,  post. 

-  Plowman  v.  Riddle,  14  Ala.  169  (1848).  See  g§  78  and  79, 
post. 

3  Hoyt  V.  Martense,  16  N.  Y.  231  (1857). 


FORECLOSURE    BY    COLLATERAL   ASSIGNOR.  29 

assignee  himself, can  object  that  he  is  made  a  defendant.^ 
And  if  the  assignee,  or  pledgee,  refuses  to  become  a  co- 
plaintiff,  upon  the  request  of  the  mortgagee,  he  cannot 
himself  object  that  he  is  made  a  defendant  to  the 
action  ;-  it  should  be  alleged  in  the  complaint,  however, 
that  he  has  refused  to  join  as  a  co-plaintiff.  If  an  objec- 
tion is  made  at  all,  it  must  be  by  demurrer  or  answer, 
or  the  alleged  defect  will  be  considered  waived  at  the 
trial.^  The  rule  of  this  section  is  in  accordance  with 
the  general  principle  that  all  parties  interested  in  the 
mortgage  debt  must  be  before  the  court,  or  the  decree  of 
foreclosure  will  not  extinguish  their  interests.  Equity 
courts  are  not  particular  as  to  how  parties  come  before 
them,  so  long  as  all  persons  interested  in  the  subject- 
matter  of  the  action  are  brought  within  their  jurisdic- 
tion, so  that  a  complete  determination  can  be  made 
of  the  rights  of  all  the  parties  interested.  It  is 
indispensable  that  the  pledgee,  and  all  others  interested 
in  the  mortgage  as  a  collateral  security,  be  made  parties 
to  the  action.^  The  decree  should  provide  first  for  the 
payment  to  the  pledgee  of  the  amount  due  him,  and 
then  for  the  payment  to  the  mortgagee  of  the  balance.'' 
It  is  also  proper  for  the  mortgagee  and  the  pledgee  to 

1  kSimson  v.  Satterlee,  64  N.  Y.  657  (1876),  affirming  6  Hun, 
30.5  (1875). 

-  Norton  v.  Warner,  3  Edw.  Ch.  (N.  Y.)  106  (1887) ;  New  York 
Code,  §  448.     See  §  6,  ante. 

3  Carpenter  v.  O'Dougherty,  67  Barb.  (N.  Y.)  397 ;  2  T.  &  C. 
427,  aff' d  58  N.  Y.  681  (1874).  See  O'Douirherty  v.  Remington 
Paper  Co.,  81  N.  Y.  496  (1880);  Remington  Paper  Company  v. 
O'DoLi^^herty,  81  id.  474  (1880). 

4  See  §§  78  and  79,  post;  Woodruff  v.  Depue,  14  N.  J.  Eq. 
168,  176  (1861) ;  Miller  v.  Henderson,  10  N.  J.  Eq.  (2  Stockt.) 
320  (1861) ;  Kittle  v.  Van  Dyck,  1  Sandf.  Ch.  (N.  Y.)  76  (1843). 

5  Brunette  v.  Schettler,  21  Wis.  188  (1866) ;  Overall  v.  Ellis, 
32  Mo.  Rep.  322  (1862). 


30  PARTIES    TO    MORTGAGE    FORECLOSURES. 

join  as  co-plaintiffs  in  the  action  to  foreclose,  as  they 
are  together  the  owners  of  the  entire  bond  and  mort- 
gage. Neither  the  mortgagor  nor  other  parties  to  the 
action  can  object  to  such  joinder  of  plaintiffs,  as  all 
parties  interested  in  the  mortgage  debt  are  thereby 
brought  before  the  court,  so  that  its  decree  will  be- 
come binding  and  conclusive  upon  them.^ 

§  15.  Assignee  of   mortgage  as   collateral  security  may- 
foreclose. 

In  the  foregoing  section  it  has  been  seen  that  though 
a  mortgagee  has  pledged  his  mortgage  as  a  collateral 
security,  he  may  nevertheless  maintain  an  action  to 
foreclose  it ;  also,  that  the  mortgagee  and  the  pledgee 
may  unite  as  co-plaintiffs  in  foreclosing.  It  has  now 
become  well  settled,  as  a  further  principle,  that  the 
pledgee,  who  liolds  the  mortgage  as  a  collateral  security, 
may  also  maintain  an  action  for  its  foreclosure."-     The 

1  Hoyt  V.  Martense,  16  N.  Y.  231  (1857). 

-  Whitney  v.  M'Kinney,  7  Johns.  Ch.  (N.  Y.)  144  (1823) ;  Bard 
V.  Poole,  12  N.  Y.  495,  507  (1855),  per  Denio,  J.,  stating  the  rea- 
sons for  the  rule.  Bloomer  v.  Stiirges,  58  N.  Y.  168  (1874) ;  Car- 
penter V.  O'Dongherty,  67  Barb.  (N.  Y.)  397  (1873) ;  S.  C,  2  T.  & 
C.  427,  affirmed  in  58  N.  Y.  681  (1874) ;  Bush  v.  Lathrop,  22  N. 
Y.  535  (1860);  Dalton  v.  Smith,  86  id.  176  (1881):  Lehman 
V.  McQueen,  65  Ala.  570  (1882) ;  Hunter  v.  Levan,  il  Cal.  11 
(1858) ;  Beers  v.  Hawlev,  3  Conn.  110  (1819) ;  St.  John  v.  Free- 
man, 1  Carter  (Ind.),  84  (1848) ;  Wilson  v.  Fatout,  42  Ind.  52 
(1873).  See  Compton  v.  Jones,  65  id.  117  (1878),  where  the  debt, 
for  which  the  bond  and  mortgage  had  been  assigned  as  collateral 
security,  had  been  paid  by  the  assignor,  entitling  him  to  a  re- 
assignment of  the  securities,  and  the  assignee  unsuccessfully  at- 
tempted a  foreclosure  ;  Brown  v.  Tyler,  8G-ray  (Mass.),  135(1857) ; 
Cutts  V.  York  Manuf.  Co.,  14  Me.  326  (1837)  ;  18  id.  190  (1841),  per 
Weston,  Ch.  J.,  where  the  assignor  was  made  a  defendant ;  Rice 
V.  Dillingham,  73  id.  59(1881) ;  Graydon  v.  Church,  7  Mich.  36, 
50,  68  (1859),  per  Christiancy,  J.,  collating  and  reviewing  the 
authorities,  especially  in  New  York ;  Paige  v.  Chapman,  58  N. 


FORECLOSURE    BY    COLLATERAL    ASSIGNEE.  31 

pledgee,  however,  can  recover  judgment  only  for  the 
amount  of  his  claim,  the  payment  of  which  the  decree 
should  direct.^  The  amount  secured  and  the  interests 
of  all  the  parties  in  the  mortgage,  together  with  the  fact 
that  the  assignment  is  only  collateral  or  conditional, 
must  be  specifically  stated  in  the  complaint ;  and  it  is  in- 
dispensable that  the  mortgagee,  or  owner  of  the  equity 
of  redemption  in  the  mortgage,  be  made  a  party  to  the 
action  in  order  that  his  interests  also  may  be  foreclosed. - 
It  should  also  appear  in  the  complaint  that  the  mort- 
gagee has  refused  to  become  a  co-plaintiff  with  the 
pledgee;  otherwise  the  complaint  will  be  demurrable. 
It  is  believed  that  a  person  who  holds  an  assignment  of 
a  mortgage  to  indemnify  and  protect  him  against  liabil- 
ities or  obligations  of  any  kind  may  foreclose  as  soon 
as  he  is  damnified. 

H.  333  (1878) :  Selectmen  of  Natchez  v.  Minor,  9  Sm.  &  M.  (Miss.) 
544  (1848) ;  Wilson  v.  Giddings,  28  Ohio  St.  554  (1876) ;  Chew  v. 
Brumagim,  21  N.  J.  Eq.  520,  529  (1870),  per  Van  Syckel,  J.,  a 
leading  case,  collating  and  reviewing  the  New  York  cases, 
reported  below  in  19  id.  130  (1868),  and  affirmed  in  13  Wall.  (U. 
S.)  497  (1871),  Avhere  the  proposition  of  this  section  was  con- 
sidered at  length. 

1  Carpenter  v.  O'Donghertv,  67  Barb.  (N.  Y.)  397  (1873).  See 
the  preceding  note.  Salmon  v.  Allen,  11  Hun  (N.  Y.),  29  (1877), 
a  complicated  case;  McCrum  v.  Corby,  11  Kan.  464  (1873). 
In  Underhill  v.  Atwater,  22  N.  J.  Eq.  16  (1871),  the  assignee 
became  the  owner  of  the  entire  mortgage  pending  the  fore- 
closure of  his  original  claim,  and  a  supplemental  bill  was 
held  necessary  to  cover  his  new  interest  in  the  mortgage.  See 
Kamena  v.  Huelbig,  23  N.  J.  Eq.  78  (1878);  Van  Deventer  v. 
Stiger,  25  id.  224  (1874),  holding  that  the  decree  must  be  for  the 
amount  of  the  debt  and  interest  only  ;  Ackerson  v.  Lodi  Branch 
R.  R.,  28  id.  542  (1877). 

'^  See  §§  78  and  79,  ?jo.s^,  and  cases  cited  ;  also  §  14,  ante ; 
Fisher,  §  348,  and  the  English  cases  cited. 


32  PARTIES    TO    MORTGAGE    FORECLOSURES. 

§  16.  Owner  of  an  equitable  interest  of  any  kind  in  the 
mortgage,  a  real  party  in  interest,  may  generally 
foreclose. 

According  to  Mr.  Pomeroy,  it  is  a  general  principle 
of  practice  in  most  of  our  states  that  every  action 
must  be  prosecuted  in  the  name  of  the  real  party 
in  interest.^  Following  this  universal  and  equitable 
principle,  the  courts  have  established  a  rule  that  who- 
ever holds  an  equitable  or  real  interest  of  any  kind  in  a 
mortgage,  may  bring  an  action  for  its  foreclosure;"-^ 
indeed,  the  rule  in  such  actions  is  as  elastic  and  liberal  as 
equity  jurisprudence  could  possibly  make  it.  It  has  be- 
come almost  axiomatic  that  an  equity  court  cares  little 
who  brings  an  action,  so  that  he  be  a  real  party  in  interest, 
nor  how  it  is  brought,  so  long  as  it  acquires  complete 
jurisdiction  of  all  the  parties  interested,  and  of  the  en- 
tire subject-matter  in  issue,  so  that  a  complete  adjudi- 
cation can  be  made  upon  the  whole  case.  It  has  been 
shown  that  the  person  who  holds  the  largest  interest  in 
the  mortgage  should  commence  the  action  ;  and  it  is  un- 
doubtedly the  best  practice  to  have  all  parties  interested 
in  the  mortgage  united  as  plaintiffs,  as  opposed  to  all  par- 
ties interested  in  the  equity  of  redemption,  who  are  best 
made  defendants.^  But  where  this  is  impossible,  or 
parties  refuse  to  join  as  co-plaintiffs,  they  can  equally 
well  be  made  defendants,  and  the  decree  of  the  court 

^  Pomeroy's  Remedies,  §  99.     See  §  6,  ante. 

-  Hill  V.  Meeker,  23  Conn.  594  (1855) ;  Wooden  v.  Haviland, 
18  id.  107  (1846).  See  Irish  v.  Sharp,  89  111.  261  (1878),  holding 
that  the  action  should  be  brought  in  the  name  of  the  equitable 
owner  of  the  mortgage,  and  not  in  the  name  of  the  mortgagee  for 
his  use. 

3  Jones,  §§  1369,  1370.     See  §§  14  and  15,  ante,  and  notes. 


OWNER    OF    AN    EQUITABLE    INTEREST.  33 

will  be  conclusive  upon  them.  It  often  becomes  neces- 
sary to  make  persons  who  are  interested  in  the 
mortgage,  defendants,  as  their  interests  may  be  an- 
tagonistic to  the  interests  of  others  who  also  own  a  part 
of  the  mortgage.  Furthermore,  no  one  can  be  made  a 
plaintiif  against  his  will,  and  a  person  once  refusing  to 
become  a  plaintiif,  can  be  brought  into  an  action  in  no 
other  way  than  as  a  defendant.^ 

The  cases,  in  which  questions  have  arisen  affecting 
equitable  assignments  and  the  conditional  and  contingent 
rights  of  parties  in  mortgages,  are  so  varied  in 
character  that  it  is  almost  impossible  to  induce  from 
them  any  general  rules  or  principles  applicable  to  the 
subject  of  this  section.  A  legatee  may  foreclose  a  mort- 
gage upon  default  where  it  was  bequeathed, — the  inter- 
est to  him  and  the  principal  to  another, — and  the  mort- 
gage was  to  be  kept  on  foot  by  the  terms  of  the  will  as 
a  living  security  for  those  purposes.^  So  a  mortgagee 
may  foreclose  a  mortgage  conditioned  for  his  support 
and  maintenance  during  life.^  In  Lawrence  v.  Lawrence^ 
a  mortgage  had  been  given  by  a  husband  and  wife  as 
executor  and  executrix  to  their  co-executrix  to  secure 
the  payment  of  moneys  of  the  estate  received  by  the 
husband  as  executor ;  the  wife,  after  her  husband's 
death,  was  not  allowed  to  file  a  bill  in  her  character  as 
executrix  against  his  personal  representatives  and  heirs- 
at-law,  to  foreclose  such    mortgage,  where  it  did   not 

1  New  York  Code,  §  448. 

-  Hancock   v.  Hancock,    22  N.  Y.    568  (1860),  Tper  Comstock, 
Ch.  J. 

3  Ferguson  v.  Ferguson,  2  N.  Y.  360  (1849). 

4  3  Barb.  Ch.  (N.  Y.)  71,  75  (1848).     The  above  quotation  is 
abridged  from  the  chancellor's  opinion. 

3 


34  PARTIES    TO    MORTGAGE    FORECLOSURES. 

appear  from  the  bill  that  she  was  entitled,  in  her  sole 
and  separate  right  as  a  legatee,  to  a  portion  of  the  fund 
secured  by  the  mortgage.  "  If  in  such  a  case  the  wife 
had  an  interest  in  the  fund,  and  the  co-executrix  to  whom 
the  mortgage  was  given,  upon  a  proper  application  to  her 
for  that  purpose,  refuses  to  proceed  to  foreclose  the 
mortgage,  the  widow  of  the  mortgagee  and  the  other 
legatees  for  whose  benefit  the  mortgage  was  given,  may 
file  a  bill  showing  their  respective  rights  in  the  fund, 
and  claiming  to  have  the  benefit  of  such  mortgage 
and  of  a  foreclosure  thereof.  But  in  that  case  the  mort- 
gagee and  all  the  legatees  who  are  interested  in  the  fund, 
must  be  made  parties  to  the  suit;  or  the  bill  must  be 
filed  by  some  of  the  legatees  in  behalf  of  themselves  and 
of  all  others  having  an  interest  in  the  fund," 

It  may  be  stated  generally  that  a  purchaser  at  a  fore- 
closure sale  becomes  an  equitable  assignee  of  the  mort- 
gage foreclosed,  for  the  purpose  of  maintaining  a  second 
or  strict  foreclosure  to  extinguish  the  liens  of  junior 
incumbrancers  who  were  not  made  parties  to  the  original 
action,  or  of  perfecting  a  foreclosure  in  any  way  defect- 
ive ;^  he  is  entitled  to  an  action  de  novo  on  the  mort- 
gage.-    But  a  deed  executed  by  both  United  States  loan 

1  Robinson  v.  Ryan,  25  N.  Y.  320  (1862) ;  Bolles  v.  Duff,  43 
id.  469  (1871);  Stewart  v.  Hutchinson,  29  How.  (N.  Y.)  181 
(1864);  Franklyn  v.  Hayward,  61  id.  43  (1881);  Taylor  v. 
Asrricultural  &  M.  Ass.,  68  Ala.  229  (1883);  Goodenow  v.  Ewer, 
16"Cal.  461  (1860) ;  Muir  v.  Berkshire,  52  Ind.  149  (1875) ;  Shaw 
V.  Heisey,  48  Iowa,  468  (1878) ;  Shinier  v.  Hammond,  51  id.  401 
(1879);  Jones  v.  Mack,  53  Mo.  Rep.  147  (1873);  Wilcoxon  v. 
Osborn,  77id.  621(1883);  Johnson  v.  Robertson,  34  Md.  165 
(1870) ;  Stark  v.  Brown,  12  Wis.  572  (1860) ;  Moore  v.  Cord,  14 
id.  213  (1861) ;  Bank  of  Wis.  v.  Abbott,  20  id.  570  (1866). 

2  Rogers  v.  Holyoke,  14  Minn.  220  (1869).  In  Robinson  v. 
Ryan,   25  N.  Y.  320  (1862),  the  purchaser  at  a  statutory  fore- 


OWNER    OF    AN    EQUITABLE    INTEREST.  35 

commissioners,  in  pursuance  of  a  sale  held  by  one  only, 
has  been  held  void  and  not  operative  as  an  equitable 
assignment  of  the  mortgage  to  the  purchaser,  so  as  to 
give  him  any  rights  under  it.^  Where  omitted  parties 
or  others  bring  an  action  to  redeem  from  a  foreclosure 
sale,  the  purchaser  is  likewise  regarded  as  an  equitable 
assignee  of  the  mortgage,"  and  a  necessary  defendant. 

A  person  who  advances  money  for  the  payment  of  a 
mortgage,  with  the  expectation  of  having  another  mort- 
gage executed  to  himself  as  security,  becomes  an  equi- 
table assignee  of  the  existing  mortgage,  and  upon  refusal 
of  the  mortgagor  to  execute  a  new  mortgage,  he  may 
maintain  an  action  for  the  foreclosure  of  the  first  one.^ 
So  also  a  person  who  loans  money  on  a  mortgage,  to  be 
used  in  part  for  the  payment  of  a  prior  mortgage,  is 
equitably  subrogated  as  assignee  of  the  mortgage  so 
paid,  and  may  foreclose  it,  in  case  the  mortgage  exe- 
cuted to  him  for  the  loan  is  declared  usurious  or  void 
for  other  reasons.^  A  valid  and  subsisting  obligation 
is  not  destroyed  because  included  in  a  security,  or  made 
the  subject  of  a  contract,  void  for  usury ;  although  for- 
mally satisfied  and  discharged,  it  may  be  revived  and 
enforced  in  case  the  new  security  or  contract  is  invali- 
dated.    And  where  a  mortgage,  executed  to  a  clerk  in 

closure  sale,  defective  for  want  of  service  of  a  notice  upon  the 
mortgagor,  was  held  to  stand  as  an  assignee  of  the  mortgage, 
and  was  allowed  in  this  action  to  foreclose. 

1  Olmsted  v.  Elder,  5  N.  Y.  144  (1851). 

2  McSorley  v.  Larissa,  100  Mass.  270  (1868) ;  Bolles  v.  Duff, 
43  N.  Y.  469  (1871);  Childs  v.  Childs,  10  Ohio  St.  339  (1859). 

■'  Gilbert  v.  Gilbert,  39  Iowa,  657  (1874) ;  Bank  v.  Campbell, 
2  Rich.  Eq.  (S.  C.)  179  (1846). 

*  Patterson  v.  Birdsall,  64  N.  Y.  294,  298  (1876),  affirming  6 
Hun,  632  (1876).     See  Miller  v.  Winchell,  70  N.  Y.  437  (1877). 


36  PARTIES    TO    MORTGAGE    FORECLOSURES. 

chancery,  to  secure  a  widow's  dower,  was  subsequently 
discharged  by  the  clerk  without  authority  of  the  court, 
upon  the  execution  to  him  of  a  second  mortgage  for  a 
larger  sum,  the  court  decided  that  if  the  owners  of  the 
fund  had  not  elected  to  foreclose  the  second  mortgage 
they  might  have  foreclosed  the  first  one,  on  the  ground 
that  its  discharge  by  the  clerk,  without  authority,  was 
null  and  void.^^ 

It  often  occurs  that  a  purchaser  of  an  equity  of  re- 
demption in  mortgaged  premises,  pays  and  procures 
an  existing  mortgage  to  be  discharged,  believing  it  to  be 
the  only  incumbrance  on  the  premises.  Upon  his  dis- 
covery of  liens  subsequent  to  the  mortgage  discharged, 
the  mortgage  may  be  revived,  and  he  will  be  held 
equitably  subrogated  to  all  the  rights  of  the  mortgagee.^ 
A  grantor  who  pays  a  mortgage  which  his  grantee  has 
assumed,  is  held  subrogated  to  all  the  rights  of  the 
mortgagee,  and  in  an  action  to  foreclose,  may  recover  a 
judgment  for  deficiency  against  the  grantee;  and  it  is 
questionable  whether,  where  the  security  is  being  im- 
paired, he  has  any  remedy  to  protect  himself,  except  to 
pay  his  bond  and  mortgage  and  become  subrogated  to 
the  rights  of  the  mortgagee.'^ 

The  form  in  which  an   assignee  acquires  his  owner- 

1  Farmers'  Loan  &  Trust  Co.  v.  Walworth,  1  N.  Y.  433  (1848). 
See  Homoeopathic  Mut.  Life  Ins.  Co.  v.  Marshall,  32  N.  J.  Eq. 
103  (1880). 

2  Ayers  v.  Adams,  82  Iiid.  109  (1882);  Youngman  v.  Elmira 
&  W.  R.  R.,  65  Penn.  278  (1870);  Cobb  v.  Dyer,  69  Me.  494 
(1879) ;  Lovejoy  v.  Vose,  73  id.  46  (1881). 

3  Marshall  v.  Davies,  78  N.  Y.  415,  421  (1879),  reversing  16 
Hun,  606.  See  Calvo  v.  Davies,  73  N.  Y.  211,  215  (1878).  In 
point,  Wadsworth  v.  Lyon,  93  id.  201  (1883) ;  Wood  v.  Smith,  51 
Iowa,  156  (1879). 


FORECLOSURE    BY    SURETY    FOR    MORTGAGE    DEBT.         37 

ship  or  interest  in  the  mortgage  is  quite  immaterial ;  it 
may  be  by  mere  delivery  or  by  parol,  but  to  enable  the 
assignee  to  maintain  a  foreclosure  there  must  be  a  dis- 
tinct intention  to  give  him  an  interest  in  the  bond  and 
mortgage.  Where  the  intention  is  to  have  a  written  as- 
signment, a  mere  manual  delivery  will  not  pass  the  title.^ 

§  17.  A  surety   for   the   mortgage   debt   may  sometimes 

foreclose. 

If  a  person  who  stands  in  the  relation  of  surety  to  a 
mortgage  debt  is  compelled  to  pay  it,  he  is  entitled  to 
be  subrogated  to  the  rights  of  the  mortgagee,  and  may 
foreclose  the  mortgage  in  his  own  name,  without  a 
formal  assignment  either  in  writing  or  by  parol.'^  There 
are  three  principal  ways  in  which  this  relation  and  its 
attending  rights  may  arise :  First,  where  the  surety 
has  guaranteed  the  payment  of  the  mortgage  debt,  in 
an  assignment  or  a  separate  instrument,  he  may  take 
up  the  bond  and  mortgage  and  enforce  their  jDayment 
in  his  own  name  f  it  has  been  held  that  not  even  an 
assignment  is  necessary.* 

Second,  where  a  grantor  is  obligated  to  pay  a  mort- 
gage debt  and  conveys  the  land  to  a  grantee,  who  assumes 
the  payment   thereof,    he    is  entitled,   on   paying   the 

^  So  held  by  Folger,  J.,  in  Strause  v.  Josephthal,  77  N.  Y. 
622  (1879).  See  Green  v.  Marble,  37  Iowa,  95  (1873) ;  Andrews 
V.  McDaniel,  68  N.  C.  385  (1873). 

2  Norton  v.  Soule,  2  Greenl.  (Me.)  341  (1823) ;  Minis  v.  Mc- 
Dowell, 4  Ga.  182  (1848) ;  Saylors  v.  Saylors,  3  Heiskell  (Tenn.), 
525  (1871).  See  also  the  cases  cited  below,  and  §§  15  and  16, 
ante,  and  notes ;  Jones,  §  1380 ;  Thomas,  p.  240. 

•^  Darst  V.  Bates,  95  111.  493  (1880)  ;  Gerber  v.  Sharp,  72  Ind. 
554  (1880). 

4  Walker  v.  King,  44  Vt.  601  (1872). 


38  PARTIES    TO    MORTGAGE    FORECLOSURES. 

debt,  voluntarily  or  otherwise,  to  be  subrogated  to  the 
rights  of  the  mortgagee,  and  to  enforce  the  mortgage 
against  the  land  as  the  primary  fund  for  payment,  and 
thereafter  against  all  persons  liable  for  a  deficiency.  The 
right  to  foreclose  is  perfect  without  an  assignment  of  the 
bond  and  mortgage;^  even  in  a  case  where  the  grantee 
had  not  assumed  payment  of  the  mortgage,  the  grantor, 
on  paying  the  mortgage,  was  deemed  equitably  subro- 
gated to  the  extent  that  he  could  maintain  a  foreclosure.-^ 
But  an  assignment  can  be  compelled  upon  tender  of  the 
amount  unpaid,  and  if  the  mortgagee  refuses  to  assign, 
an  action  can  be  maintained  against  him  for  a  formal 
assignment  of  the  bond  and  mortgage.  The  theory 
upon  which  an  assignment  will  be  decreed  has  been 
stated  as  that  of  equitable  subrogation.^  Upon  the 
rights  of  a  surety  in  this  connection,  Judge  Morse,*  of 
the  New  York  Court  of  Appeals,  has  said :  "  I 
understand  the  law  to  be  as  well  settled,  as  the  reason 
and  justice  of  the  rule  is  clear,  that  any  one  who  holds 
the  actual  relation  of  surety  for    the  mortgage  debt, 

1  McLean  v.  Towle,  3  Sandf.  Ch.  (N.  Y.)  117  (1845) ;  Josselyn 
V.  Edwards,  57  Ind.  212  (1877) ;  Hoffman  v.  Risk,  58  id.  113 
(1877) ;  Risk  v.  Hoffman,  69  id.  137  (1879) ;  Wood  v.  Smith,  51 
Iowa,  156  (1879) ;  Hoysradt  v.  Holland,  50  N.  H.  433  (1870). 

2  Baker  v.  Terrell,  8  Minn.  195  (1863). 

■^  Matteson  v.  Thomas,  41  111.  110  (1866):  Johnson  v.  Zink,  51 
N.  Y.  333  (1873),  affirming  52  Barb.  396  (1868). 

4  Averill  v.  Taylor,  8  N.  Y.  44,  51  (1853).  See  also  Marsh  v. 
Pike,  10  Paige  (N.  Y.),  595  (1844),  cited  and  reviewed  in  Calvo 
V.  Davies,  73  N.  Y.  211,  215  (1878) ;  Marshall  v.  Davies,  78  id.  414, 
421  (1879) ;  S.  C,  58  How.  (N.  Y.)  231 ;  Cox  v.  Wheeler,  7  Paige 
(N.  Y.),  248,  258  (1838) ;  Halsey  v.  Reed,  9  id.  446  (1842) ;  Tice 
V.  Annin,  2  Johns.  Ch.  (N.  Y.)  125  (1816) ;  Cherry  v.  Monro,  2 
Barb.  Ch.  (N.  Y.)  618  (1848) ;  Ferris  v.  Crawford,  2  Denio  (N. 
Y.)  595  (1845);  Cornell  v.  Prescott,  2  Barb.  (N.  Y.)  16  (1847); 
Stebbins  v.  Hall,  29  id.  525  (1859) ;  Brewer  v.  Staples,  3  Sandf. 
Ch.  (N.  Y.)  579  (1846). 


RIGHT    OF    SURETY    TO    FORECLOSE.  39 

charged  upon  land  in  which  he  has  an  interest,  although 
his  liability  as  such  surety  extends  no  farther  than  to 
lose  his  interest  in  the  land,  has  a  right  to  redeem,  for 
the  protection  of  such  interest.  And  I  suppose  it  to  be 
equally  well  settled,  that  his  right  as  surety  in  such 
a  case,  and  upon  his  redeeming,  is,  to  be  subrogated  to 
the  rights  and  to  occupy  the  position  of  the  creditor 
from  whom  he  redeems."  And  Chief  Commissioner 
Lott,  in  a  later  case,^  in  the  same  court,  determined 
that  the  "  relation  of  surety  between  the  mortgagor  and 
his  grantee  does  not  deprive  the  obligee  of  the  right  of 
enforcing  the  bond  against  the  obligor.  He  is  entitled 
to  his  debt,  and  has  a  right  to  avail  himself  of  all  his 
securities.  Equity,  however,  requires  that  the  obligor, 
on  the  payment  of  the  debt  out  of  his  own  funds,  should 
be  subrogated  to  the  rights  of  the  obligee,  so  that  he 
can  reimburse  himself  by  a  recourse  to  the  mortgaged 
premises  for  that  purpose.  This  cannot  prejudice  the 
creditor,  and  it  is  clearly  equitable  as  between  the 
debtor  and  the  owner  of  the  land.  He  clearly  has  no 
right  or  color  of  right,  justice  or  equity  to  claim  that 
he,  notwithstanding  the  conveyance  of  the  property 
subject  to  the  mortgage,  and  thus  entitling  him  only  to 
its  value  over  and  above  it,  should  in  fact  enjoy  and 
hold  it  discharged  of  the  incumbrance,  without  any  con- 
tribution toward  its  discharge  and  satisfaction,  from  the 
land.  This  equitable  principle  is  fully  recognized  in 
most  of  the  cases.  Indeed,  it  is  so  consistent  with 
right  and  justice  as  to  require  no  authorities  to  sustain 
it."     It  is  to  be  observed  of  all  cases  mentioned  in  this 

1  Johnson  v.  Zink,  51  N.  Y.  383  (1873). 


40  PARTIES    TO    MORTGAGE    FORECLOSURES. 

section,  that  the  land  is  the  primary  fund  for  the  payment 
of  the  mortgage  debt.^  The  surety  cannot  compel  the 
mortgagee  to  file  a  bill  to  foreclose  the  mortgage  and  to 
exhaust  his  remedy  against  the  principal  debtor  by  a 
judgment  for  deficiency  ;  but  he  may  file  a  bill  against 
the  mortgagee'-  and  the  subsequent  grantee,  who  has 
assumed  the  payment  of  the  debt  and  thereby  become 
the  principal  debtor,  to  have  the  debt  paid  to  the  mort- 
gagee by  such  grantee,  or  from  the  proceeds  of  a  sale 
of  the  mortgaged  premises.  "  It  is  well  settled  that  a 
surety  after  the  debt  has  become  due  may  come  into 
court  and  compel  the  principal  to  pay  the  debt."^ 

Third,  where  a  subsequent  incumbrancer,  though  not 
holding  the  actual  relation  of  surety  for  the  mortgage 
debt,  still  has  such  an  interest  in  the  land  that  he  may 
redeem  from  the  mortgage  debt  by  paying  the  same, 
and  thereby  become  subrogated  to  the  rights  and  the 
position  of  the  mortgagee.*     Cases  under  this  head  are 

1  Marsh  v.  Pike,  10  Paige  (N.  Y.).  .595  (1844),  affirming  1 
Saiidf.  Ch.  210  (1843). 

-  Morse  v.  Larkiii,  46  Vt.  371  (1874). 

3  Marsh  v.  Pike,  1  8andf.  Ch.  (N.  Y.)  212  (1843),  supra,  pe9' 
Vice-Chancellor  8andford,  citing  Warner  v.  Beardsley,  8 
Wend.  (N.  Y.)  194  (1831);  1  Story's  Eq.  327;  2  id.  35,  §  730; 
144,  §  849.  See  Hayes  v.  Ward,  4  Johns.  Ch.  (N.  Y.)  123,  132 
(1819) ;  Cornell  v.  Prescott,  2  Barb.  (N.  Y.)  16  (1847) ;  Norton  v. 
Warner,  3  Edw.  Ch.  (N.  Y.)  108  (1837),  and  note;  McLean  v. 
Lafayette  Bank,  3  McLean  (U.  S.),  587  (1846). 

4  Ellsworth  V.  Lockwood,  42  N.  Y.  89,  99  (1870),  is  the  leading 
case  ;  relied  upon  in  Dings  v.  Parshall,  7  Hun  (N.Y.),  522  (1876). 
See  Averill  v.  Taylor,  8  N.  Y.  44  (1853) ;  Cornell  v.  Prescott,  2 
Barb.  (N.  Y.)  20  (1847) :  Carpentier  v.  Brenham,  40  Cal.  221 
(1870);  Tyrrell  v.  Ward,  102  111.  29  (1882);  Benton  v.  Shreeve, 
4  Ind.  6Q  (1853) ;  Lowrey  v.  Byers,  80  id.  443  (1881).  For  an 
exhaustive  discussion  of  the  doctrine  of  subrogation  and  substi- 
tution, as  applied  to  parties  to  a  mortgage,  see  Rardin  v.  Walpole, 
38  Ind.  146  (1871),  collating  the  authorities. 


ASSIGNEE    OF    MORTGAGE,    WITHOUT    BOND.  41 

numerous  in  those  states  where  foreclosure  may  be  made 
by  entry  and  possession,  and  the  mortgagor  and  those 
claiming  under  him  are  obliged  to  assert  their  rights  by 
redemption,  especially  in  Massachusetts,  Maine  and 
Vermont.  One  of  two  joint  mortgagors,  who  has  been 
obliged  to  pay  the  whole  debt,  has  been  held  subrogated 
to  the  rights  of  the  mortgagee  as  against  the  other 
mortgagor;^  and  if  a  purchaser  of  a  divided  or  an 
undivided  part  of  mortgaged  premises  pays  the  entire 
mortgage  to  protect  his  own  interest,  he  will  become 
the  equitable  assignee  of  a  proportional  part  of  the 
mortgage,  and  will  be  allowed  to  enforce  it  against  the 
remaining  part  of  the  premises.-  So  a  tenant  for  life, 
upon  paying  a  prior  existing  mortgage,  in  order  to  pro- 
tect his  own  estate,  is  deemed  an  equitable  assignee  of 
the  mortgage.^  But  a  surety  is  never  entitled  to 
subrogation  and  foreclosure  until  he  has  paid  the  debt.'^ 
The  propositions  stated  in  this  section  are  dependent 
upon  the  general  principles  of  law  which  govern  the 
relation  of  principal  and  surety,  and  more  especially  upon 
those  principles  which  entitle  a  surety  to  be  subrogated 
to  the  securities  of  a  creditor  upon  the  default  of  the 
principal  debtor  in  payment.'' 

§  18.  Assignee  of  a  mortgage  without  the  bond  cannot 

foreclose. 

It  is  now  a  well  estabUshed  principle  in  the  law  of 
mortgages  that  the  assignee  of  a  mortgage  without  the 

1  White  V.  Fisher,  62   111.  258  (1871) ;  Shinn  v.  Shimi,  91  111. 
477  (1879). 

2  Champlin  v.  Williams,  9  Penn.  St.  341  (1848). 
^  Hamilton  v.  Dobbs,  19  N.  J.  Eq.  227  (1868). 

4  Coiiwell  V.  McCowau,  53  111.  363  (1870). 
^  Brandt  on  Suretyship  and  Guaranty. 


42  PARTIES    TO    MORTGAGE    FORECLOSURES. 

bond,  note  or  indebtedness  which  the  mortgage  was  given 
to  secure,  acquires  no  title  whatever  to  the  mortgage 
debt,  and  cannot  maintain  a  foreclosure;  the  mortgage  in 
his  hands  is  a  mere  nullity.  The  assignment  of  the  mort- 
gage alone  is  scarcely  presumptive  evidence  of  an  inten- 
tion to  assign  the  indebtedness  which  it  was  given  to 
secure  ;^  but  an  assignment  of  a  bond  and  mortgage,  and 
the  mone^^'s  due  and  to  grow  due  thereon,  carries,  by  its 
terms,  a  note  for  which  they  are  held  as  collateral  security.^ 
In  Merritt  v.  Bartholick,  a  leading  case  in  New  York,  Judge 
Parker^  says :  "  As  a  mortgage  is  but  an  incident  to 
the  debt  which  it  is  intended  to  secure,  the  logical  con- 
clusion is,  that  a  transfer  of  the  mortgage  without  the 
debt  is  a  nullity,  and  no  interest  is  acquired  by  it.  The 
security  cannot  be  separated  from  the  debt  and  exist 
independently  of  it.  This  is  the  necessary  legal  con- 
clusion, and  recognized  as  the  rule  by  a  long  course  of 
judicial  decisions.  =^  ^  ^  for  the  legal  maxim  is, 
the  incident  shall  pass  by  the  grant  of  the  principal, 
and  not  the  principal  by  the  grant  of  the  incident." 
Accessorium  non  duett,  sed  sequitur  principale.     In  a  later 

1  Peters  v.  Jamestown  Bridge  Co.,  5  Cal.  334  (1855) ;  Nagle 
V.  Macy,  9  id.  426  (1858)  ;  Webb  v.  Flanders,  32  Me.  175  (1850) ; 
Lunt  V.  Lunt,  71  id.  377  (1880) ;  Willis  v.  Vallette,  4  Mete. 
(Ky.)  195  (1862);  Hubbard  v.  Harrison,  38  Ind.  323  (1871); 
Hamilton  v.  Lubukee,  51  111.  415  (1869) ;  Jackson  v.  Blodget,  5 
Cow.  (N.  Y.)  206  (1825).  See  Bulkley  v.  Chapman,  9  Conn.  ^ 
(1831),  on  the  question  of  intent ;  Powell,  1115,  1116.  See  §  19, 
post. 

2  Belden  v.  Meeker,  2  Lans.  471  (1869),  affirmed  47  N.  Y.  307 
(1872). 

3  36  N.  Y.  44,  45  (1867),  affirming  47  Barb.  253  (1866),  and  34 
How.  129.  See  the  cases  cited,  also  Cooper  v.  Newland,  17  Abb. 
(N.  Y.)  342,  344  (1863) ;  Langdon  v.  Buell,  9  Wend.  (N.  Y.)  80 
(1832). 


ASSIGNEE    OF    BOND,    WITHOUT    MORTGAGE.  43 

case/  a  bond  and  mortgage  had  been  given  to  secure  the 
performance  of  a  contract ;  after  the  contract  had  been 
rescinded,  the  assignee  of  the  bond  and  mortgage 
brought  an  action  for  foreclosure,  but  it  was  dismissed 
on  the  ground  that  the  rescission  of  the  contract  ex- 
tinguished the  indebtedness  and  the  liabihty  thereunder 
and  destroyed  the  validity  of  the  bond  and  mortgage. 
Some  courts  have  held  that  an  assignment  of  the 
mortgage  without  the  note  or  bond  transfers  a  naked 
trust,^  and  that  the  assignee  must  hold  the  mortgage  at 
the  will  and  disposal  of  the  creditor  who  owns  the 
bond.'^  Where  a  mortgage  is  executed  without  a  bond 
or  other  written  evidence  of  the  debt  secured,  and  it 
contains  no  covenant  for  the  payment  of  the  debt,  the 
assignee  acquires  a  valid  claim  and  lien  upon  the  land, 
but  nothing  more.* 

§  19.  Assignee  of  the  note,  bond  or  debt   may  foreclose, 
though  the  mortgage  is  not  assigned. 

As  has  been  seen  in  the  preceding  section,  the  mort- 
gage debt  is  the  essential  fact,  while  the  mortgage  is 
merely  an  incident.  Consequently  the  assignee  of  the 
debt  may  foreclose,  as  he  is  the  equitable  assignee  of 
the    mortgage,    though    he    holds    neither    a   written 

1  Wanzer  v.  Caiy,  76  N.  Y.  526  (1879).  In  point,  Emory  v. 
Keighan,  94  111.  543  (1880). 

2  Pope  t.  Jacobus,  10  Iowa,  262  (1859) ;  Johnson  v.  Walter,  60 
id.  315  (1882);  Johnson  v.  Cornett,  29  Ind.  59  (1867);  Cleveland 
V.  Cohrs,  10  Rich.  (S.  C.)  224  (1878). 

3  Medley  v.  Elliot,  62  111.  532  (1872) ;  Bailev  v.  Gould,  Walker, 
Ch.  (Mich.)  478  (1844) ;  Webster  v.  Calden,  56  Me.  204  (1868) ; 
Huntington  v.  Smith,  4  Conn.  237  (1822) ;  Dudley  v.  Cadwell, 
19  id.  228  (1848). 

^  Severence  v.  Griffith,  2  Laus.  (N.  Y.)  38  (1870). 


44  PARTIES    TO    MORTGAGE    FORECLOSURES. 

nor  parol  assignment  of  it.'  He  is  the  real  party  in 
interest  and  can  give  a  full  quittance  of  the  debt,  though 
he  is  not  in  a  position  to  execute  a  legal  discharge  of 
the  mortgage.'  The  rule  of  this  section  holds  good 
even  after  the  debt  has  been  put  into  a  judgment." 
While  in  a  foreclosure  it  may  not  be  indispensable  to 

1  For  the  New  York  cases  see  the  preceding  section.  Doe  v. 
McLoskey,  1  Ala.  708  (1840) ;  Center  v.  P.  &  M.  Bank,  22  id. 
743  (1853);  Austin  v.  Burbank,  2  Day  (Conn.),  474  (1807); 
Huntington  v.  Smith,  4  Conn.  237  (1822);  Quinebaug  Bank 
V.  French,  17  id.  134  (1845) ;  Ord  v.  McKee,  5  Cal.  515  (1855) ; 
Bennett  v.  Solomon,  6  id.  134  (1856);  Willis  v.  Farley,  24 
id.  490  (1864) ;  Kurtz  v.  Sponable.  6  Kan.  395  (1870) ;  Bank,  U. 
S.,  V.  Huth,  4  B.  Mon.  (Ky.)  450  (1844);  Vimont  v.  Stitt,  6  id. 
478  (1846);  Burdett  v.  Clay,  8  id.  295  (1847-8);  Garrett  v. 
Puckett,  15  lud.  485  (1860) ;  Gower  v.  Howe,  20  id.  396  (1863) ; 
Holdrige  v.  Sweet,  23  id.  118  (1864);  Ryan  v.  Dmilap,  17  111.  40 
(1815);  Olds  V.  Cummings,  31  id.  188  (1863);  Herring  v.  Woodh  nil, 
29  id.  92  (1862) ;  Hamilton  v.  Lubukee,  51  id.  415  (1869) ;  Crow  & 
Co.  V.  Vance,  4  Clarke  (Iowa),  434  (1857),  and  the  cases  cited  at 
pages  440,  441 ;  Blair  &  Co.  v.  Marsh,  8  Iowa,  144  (1859)  ; 
Sangster  v.  Love,  11  id.  580  (1861) ;  Bank  of  Indiana  v.  Ander- 
son, 14  id.  544  (1863) ;  Bremer  Co.  B'k  v.  Eastman,  34  id.  392, 
394  (1872) ;  Preston  v.  Morris,  42  id.  549  (1876) ;  Walker  v. 
Schreiber,  47  id.  529  (1877);  Warren  v.  Homestead,  33  Me.  256 
(1851);  Holmes  v.  McGinty,  44  Miss.  94  (1870);  Martin  v.  Mc- 
Reynolds,  6  Mich.  70  (1858) ;  Briggs  v.  Hannowald,  35  id.  474 
(1877);  Laber£,re  V.  Chauvin,  2  Mo.  Rep.  145  (1829) ;  Ohio  Life 
Ins.  &  Trust  Co.  v.  Winn,  4  Md.  Ch.  Dec.  253 ;  Byles  v.  Tome, 
39  Md.  461  (1873) ;  Richards  v.  Kountze,  4  Neb.  208  (1876) ;  Kyger 
V.  Rvlev,  2  id.  28  (1865)  ;  Whittemore  v.  Gibbs,  24  N.  H.  484 
(1852)  ;'Lane  v.  Sleeper,  18  id.  209  (1846) ;  Southerin  v.  Mendum, 
5  id.  420,  432  (1831);  Rigney  v.  Lovejoy,  13  id.  253  (1842); 
Wheeler  v.  Emerson,  45  id.  527  (1864)  ;  Hvman  v.  Devereux, 
63  N.  C.  624  (1869) ;  Pratt  v.  Bank  of  Bennington,  10  Vt.  293 
(1838);  21  id.  338;  22  id.  139;  Keyes  v.  Wood,  21  id.  331 
(1849) ;  Martineau  v.  McCollum,  3  Pinney  (Wis.),  455  (1852) ; 
Body  V.  Jewsen,  33  Wis.  402  (1873) ;  Perkins  v.  Sterne,  23  Tex. 
561  (1859);  Carpenter  v.  Longan,  16  Wall.  (U.  S.)  271  (1872)  ; 
Jones,  §  1377. 

2  Wayman  v.  Cochrane,  35  111.  152  (1864). 

^  Wayman  v.  Cochrane,  supra;  Swartz  v.  Leist,   13  Ohio  St. 
419  (1862) ;  Moore  v.  Cornell,  68  Penn.  320  (1871). 


CONTEMPORANEOUS  MORTGAGES.  45 

join  the  assignor  as  a  party  plaintiff  or  defendant,  it 
would  certainly  be  advisable  to  do  so,  in  order  to  ex- 
tinguish any  possible  interest  which  he  might  continue 
to  have  or  claim.  The  assignor  has  sometimes  been  held 
a  necessary  party,  on  the  ground  that  an  assignment  of 
the  note  alone  carries  only  the  equitable,  and  not  the 
legal  title  to  the  security.^  Vice  versa,  if  the  assignor 
should  commence  a  foreclosure  of  his  mortgage  after 
having  assigned  the  bond  or  debt,  his  assignee  would 
certainly  be  a  necessary  party.  According  to  the  cases, 
however,  the  assignor  could  hardly  maintain  an  action 
to  foreclose.  The  assignee  and  the  assignor  may  unite  as 
co-plaintiffs ;-  and  it  has  been  held  that  the  assignee  can 
prosecute  the  action  in  the  name  of  the  assignor.^ 

§  20.  Mortgagees    ovrning    contemporaneous    mortgages, 
being  equal  liens,  any  one  or  more  may  foreclose. 

Where  two  or  more  bonds  and  mortgages  have  been 
simultaneously  executed  and  recorded  to  secure  inde- 
pendent debts,  or  parts  of  the  same  debt,  and  are 
equal  liens  upon  the  premises,  the  mortgagees  may 
unite  as  co-plaintiffs  to  foreclose  their  mortgages,  or 
any  one  or  more  may  foreclose  upon  refusal  of  the  others 
to  unite  as  co-plaintiffs.^     One  of  the  mortgagees  can- 

1  Stone  V.  Locke,  46  Me.  445  (1859) ;  Moore  v.  Ware,  38  id. 
496  (1854) ;  Graham  v.  Newman,  21  Ala.  497  (1852) ;  Prout  v. 
Hoge,  57  id.  28  (1876)  ;  Bibb  v.  Hawley,  59  id.  403  (1877) ; 
Denby  v.  Mellgrew,  58  id.  147  (1877) ;  Burton  v.  Baxter,  7 
Blackf.  (Ind.)  297  (1844).     See  §  18,  ante. 

2  Holdridge  v.  Sweet,  23  Ind.  118  (1864). 

•'  Calhoim  v.  Tullass,  35  Ga.  119  (1866) ;  English  v.  Register, 
7  id.  387  (1849). 

*  Potter  V.  Crandall,  Clarke  Ch.  (N.  Y.)  119,  123  (1839).  See 
Green  v.  Warnick,  64  N.  Y.  220  (1876),  reversing  4  Hun,  703, 
where  the  respective   rights   of  simultaneous  mortgagees  came 


46  PARTIES    TO    MORTGAGE    FORECLOSURES. 

not  ignore  the  rights  of  the  others,  and  foreclose  with- 
out making  them  parties ;  if  they  are  omitted,  the 
decree  and  sale  will  be  defective,^  and  they  can  redeem, 
or  maintain  a  separate  foreclosure.'  The  courts  seem 
to  regard  such  mortgages  the  same  as  though  they 
constituted  a  single  mortgage  given  to  secure  to  the 
mortgagees  in  severalty  the  amounts  of  their  respective 
claims.^  In  a  New  York  case,^  it  appeared  that  a  part 
of  the  purchase-money  of  a  farm  was  secured  to  a  widow 
and  several  heirs  by  separate  mortgages  given  to  the  widow 
and  each  of  the  heirs  for  their  proportionate  shares  of  the 
purchase-money ;  all  the  mortgages  covered  the  same 
property,  and  were  executed  and  recorded  simultane- 
ously. On  default,  one  of  the  heirs  filed  a  bill  of  fore- 
closure against  the  mortgagor,  the  widow  and  the  other 
heirs.  The  court  determined  that  a  decree  could  not 
be  granted  unless  the  widow  and  co-heirs  had  refused  to 
unite  with  him  as  parties  plaintiff,  and  unless  all  the 
rights  of  all  the  parties  were  set  forth  in  the  plaintiff's 
bill,  Vice-Chancellor  Whittlesey,  writing  the  opinion, 
said  :  "  The  proper  course  for  the  complainant  to  pur- 
sue is  to  ask  his  mother  and  co-heirs  to  join  with  him  in 
foreclosing  all  the  mortgages  in  one  bill ;  if  any  refuse, 

before  the  court  in  a  contest  for  surplus  moneys ;  Decker  v.  Boice, 
83  N.  Y.  21.5  (1880);  Chochran  v.  Goodell,  131  Mass.  464  (1881). 
See  Perry's  Appeal,  22  Penn.  8t.  43  (1853),  collating  and  reviewing 
the  Pennsylvania  cases,  per  Woodward,  J.     See  §  81,  post. 

^  But  in  Dungan  v.  Anier.  Life  Ins.  Co.,  52  Penn.  253  (1866), 
one  mortgagee  foreclosed,  ignoring  the  other,  and  the  decree 
was  held  to  divest  both. 

-  Cain  v.  Hanna,  63  Ind.  408  (1878). 

'■'  See  §§  12  and  13,  ayite ;  see  Grans^er  v.  Crouch,  86  N.  Y.  494, 
499  (1881). 

*  Potter  V.  Crandall,  Clarke  (N.  Y.),  119,  123  (1839),  pei^  Vice- 
Chancellor  Whittlesey. 


SEPARATE    ACTIONS    ON    DIFFERENT    MORTGAGES.  47 

he  can  then  make  such  as  refuse,  defendants.  He  should 
set  forth  in  his  bill  all  the  circumstances  of  the  simul- 
taneous execution  of  the  mortgages  ;  and  then  the  court 
can  make  a  decree  which  will  satisfactorily  dispose  of 
all  the  rights  of  all  the  parties,  whether  some  of  them  are 
reluctant  to  proceed  or  not." 

§  21.  0"wner  of  t^vo  mortgages  cannot  foreclose  both  at 
same  time  in  separate  actions. 

A  person  who  owns  two  or  more  mortgages  upon  the 
same  premises,  cannot  maintain  separate  actions  at  the 
same  time  for  their  foreclosure.^  In  a  case"^  where  this 
proposition  was  squarely  before  the  court,  Chancellor 
Walworth  held  that  "  the  complainant  not  only  unnec- 
essarily, but  contrary  to  the  settled  practice  of  the 
court,  which  is  for  the  complainant  to  state  all  of  his 
junior  incumbrances  upon  the  mortgaged  premises  in 
his  bill  to  foreclose  his  prior  mortgage,  commenced  two 
separate  and  distinct  foreclosure  suits,  upon  these  two 
mortgages,  on  one  piece  of  land,  given  by  the  same  mort- 
gagors to  the  same  mortgagee,  and  which  mortgages,  at 
the  time  of  filing  these  bills,  belonged  to  the  same  per- 
son." The  best  practice  is  to  foreclose  all  the  mort- 
gages in  one  action,^  or  to  foreclose  the  senior  mortgage, 

1  Fitzhugh  V.  McPherson,  3  Gill  (Md.),  408  (1845).  In  Demo- 
rest  V.  Berry,  1  C.  E.  Green  (16  N.  J.  Eq.),  481  (1864),  after  an 
action  had  been  commenced  on  a  first  mortgage,  it  was  dis- 
covered that  a  second  mortgage  covered  the  same  premises 
described  in  the  first  mortgage  and  other  lands  also,  and  an 
action  was  then  commenced  on  the  second  mortgage ;  but  the 
second  foreclosure  was  allowed  to  continue  only  on  the  discon- 
tinuance of  the  first  one.     8ee  §  20,  ante. 

2  Roosevelt  v.  Ellithorp,  10  Paige  (N.  Y.),  415,  419  (1843). 

•^  McGowen  v.  Branch  Bank  at  Mobile,  7  Ala.  823 ;  Phelps  v. 
Ellsworth,  3  Day  (Conn.),  397  (1809) ;  Hawkins  v.  Hill,  15  Cal. 
499  (1860). 


48  PARTIES    TO    MORTGAGE    FORECLOSURES. 

setting  forth  in  the  complaint  the  claims  upon  the  junior 
incumbrances.  It  matters  not  that  the  mortgages  are  of 
different  dates,  and  given  to  different  persons  to  secure 
different  debts ;  it  is  essential  only  that  they  be  owned 
by  the  same  person  at  the  time  of  foreclosure,  and  that 
they  cover  the  same  premises.  If  the  junior  mortgage 
covers  other  premises  also,  the  fact  should  be  set  forth 
in  the  complaint. 

§  22.  Assignee  in  bankruptcy  or  by  general  assignment, 
or  receiver  of  a  corporation,  may  foreclose. 

An  assignee  in  bankruptcy  or  by  general  assignment 
can  foreclose  .a  bond  and  mortgage  which  belonged  to 
the  estate  of  the  assignor,  as  he  succeeds  to  the  entire 
legal  title  of  the  assets;  he  acquires  no  better  title, 
however,  than  the  assignor  possessed.^  Likewise  he  may 
assign  the  mortgage,  and  the  assignee  can  maintain 
a  foreclosure.^  The  assignor  is  not  a  necessary 
party  plaintiff" or  defendant;  if  deemed  best,  however,  he 
may  very  properly  be  made  a  defendant,  so  as  to  extin- 
guish any  possible  equities  that  he  may  claim.  The 
assignee  may  decline  to  collect  the  mortgage  or  to  pros- 
ecute a  foreclosure  if  he  believes  that  nothing  can  be 
realized.  In  such  a  case  the  bankrupt  or  assignor  is  at 
liberty  to  commence  the  suit  in  his  own  name,  but  the 
assignee  should  be  l^rought  into  the  action,  or  at  least 
be  notified  of  its  pendency,  and  requested  to  prosecute 
it.  The  general  rule  is  that,  if  an  assignee  abandons 
any  property  or  choses  in  action  belonging  to  the 
bankrupt's  estate,  or  if  he  declines  to  appear  as  prose- 

^  Upton  V.  National  Bank  of  Reading.  120  Mass.  153  (1876). 
-  Ward  V.  Price,  12  N.  J.  Eq.  (1  Beas.)  543  (1859). 


ASSIGNEE    IN    BANKRUPTCY    FORECLOSING.  49 

cuter  when  summoned  in  a  suit  pending  in  favor  of  the 
bankrupt,  the  right  remains  in  or  reverts  to  the 
bankrupt ;  he  is  still  the  legal  and  equitable  owner  of 
his  estate  as  against  every  one  but  his  assignee.^ 

The  receiver  of  an  insolvent  corporation  may  also 
foreclose  a  mortgage,"  and  his  successor  in  office  likewise 
succeeds  to  the  same  right.^  "  It  is  the  settled  doctrine 
that  the  receiver  of  an  insolvent  corporation  represents 
not  only  the  corporation,  but  also  creditors  and  stock- 
holders, and  that,  in  his  character  as  trustee  for  the 
latter,  he  may  disaffirm  and  maintain  an  action  as  receiver 
*  *  *  to  recover  its  funds  or  securities  invested  or 
misapplied."* 

§  23.  Assignee    pendente    lite    may   continue    the    fore- 
closure. 

A  person  who  purchases  a  bond  and  mortgage  pend- 
ing its  foreclosure  may  be  substituted  as  plaintiff  and 
continue  the  action  in  his  own  name,  or  the  action  may 
be  continued  in  the  name  of  the  assignor,  if  no  one 
objects  and  the  matter  is  not  brought  to  the  attention 
of  the  court.  But  objection  can  be  made  by  answer  if 
the  assignment  is  executed  before  the  answer  is  pleaded.^ 
If  the  assignment  is  recorded  or  the  fact  of  the  transfer 
is  brought  to  the  knowledge  of  the  court,  it  would  seem 

i  Towle  V.  Rowe,  58"n.  H.  394  (1878). 

-  Iglehart  v.  Bierce,  36  111.  1;.3  (1864).  Robinson  v.  Williams, 
22  N.  Y.  380  (1860),  was  an  action  by  a  receiver  against  a 
receiver. 

•^  Iglehart  v.  Bierce,  supra. 

■*  See  Attorney-General  v.  Guardian  Mat.  Life  Ins.  Co.,  77  N. 
Y.  272,  275  (1879),  per  Andrews,  J. 

•'  Wallace  v.  Dunning,  Walk.  Ch.  (Mich.)  416  (1844);  Mills  v. 
Hoag,  7  Paige  (N.  Y),  18  (1837);  Field  v.  Maghee,  5  id.  539 
(1836).     See  Smith  v.  Bartholomew,  42  Vt.  356  (1869). 
4 


50  PARTIES    TO    MORTGAGE    FORECLOSURES. 

that  the  action  can  be  continued  only  in  the  name  of 
the  true  owner  and  real  party  in  interest/  who  should 
bring  himself  forward  in  the  suit  by  petition  or  a  sup- 
plemental bill.- 

§  24.  0"wner  of  mortgage  dying,  personal  representatives 
may  foreclose. 

The  legal  title  to  a  bond  and  mortgage  passes,  upon 
the  death  of  its  owner,  to  his  personal  representatives, 
who  are  in  equity  trustees  for  the  benefit  of  the  dece- 
dent's heirs  or  legatees.  When,  at  an  earlier  day,  it 
was  held  that  the  mortgagee  had  a  vested  interest  in 
the  title  to  the  lands  under  his  mortgage,  his  heirs, 
instead  of  his  personal  representatives,  were  held  to 
succeed  to  that  interest  upon  his  death.  But  at  present 
it  is  the  uniform  law  of  America  that  a  bond  and  mort- 
gage are  only  securities,  and  pass  as  personal  property 
to  the  control  and  disposition  of  a  decedent's  personal 
representatives  f  and  the  absence  of  a  personal  obliga- 
tion by  bond,  note  or  covenant  for  the  debt,  does  not 
affect  the  right  of  the  personal  representatives  to  the 
possession  of  the  mortgage. 

A  personal  representative  upon  coming  into  due  pos- 
session and  control  of  a  bond  and  mortgage  may  main- 
tain an  action  for  its  foreclosure ;  indeed,  he  is  the  only 
person  who  can    foreclose  the   mortgage,  as  he  holds 

1  Bigelow  V.  Booth,  39  Mich.  622  (1878).  See  Ellis  v.  Sisson, 
96  111.  105  (1880).     See  §§  40-42,  post. 

2  Fisher,  §§  385-388;  Foster  v.  Deacon,  6  Madd.  (Eng.  Ch.) 
59  (1821);  Coles  v.  Forrest,  10  Beav.  (Eng.  Ch.)  552  (1847). 

^  Kinna  v.  Smith,  2  Green  Ch.  (N.  J.)  14  (1834) ;  Grace  v. 
Hunt,  1  Cooke  (Tenn.),  344  (1813) ;  Thornborough  v.  Baker,  3 
Swan.  (Eng.)  628  (1675) ;  Tabor  v.  Tabor,  3  id.  636  (1679).  See 
the  cases  cited  below. 


FORECLOSURE    BY    ADMINISTRATOR.  51 

the  entire  legal  title  to  it.'  The  administrator  of  a 
mortgagee,  to  whom  the  mortgage  was  given  to  secure 
an  annuity,  may  foreclose,  if  the  condition  was  broken 
during  the  decedent's  life-time,  and  recover  the  unpaid 
annuity.'  If  two  or  more  executors  or  administrators 
have  qualified,  all  should  unite  as  plaintiffs  ;  but  if  any 
who  have  qualified  refuse  to  join  as  co-plaintiffs,  they 
may  be  made  defendants  to  the  action ;  they  must  be 
brought  before  the  court  in  some  capacity.  In  most 
states  it  is  not  necessary  to  bring  the  heirs  of  the 
mortgagee  into  the  action  in  any  way,^  while  in  others 

1  Peck  V.  Mallams,  10  N.  Y.  509  (1853) ;  People  v.  Keyser,  28 
id.  226  (1863);  Newton  v.  Stanley,  28  id.  61  (1863);  Renaud 
V.  Conselyea,  7  Abb.  (N.  Y.)  105  (1858),  reversing  4  id. 
280  and  5  id.  346 ;  Routh  v.  Smith,  5  Conn.  135,  139  (1823) ; 
Buck  V.  Fischer,  2  Col.  T.  182  (1873) ;  Dixon  v.  Cuyler,  27  Ga. 
248  (1859) ;  Cryst  v.  Cryst,  Smith  (Ind.),  370  (1848) ;  Talbot  v. 
Dennis,  ib.  357  (1849) ;  Nolte  v.  Libbert,  34  Ind.  163  (1870).  In 
Hunsucker  v.  Smith,  49  id.  114  (1874),  an  administrator  held 
personally  a  mortaj^age  on  the  lands  of  the  decedent ;  Mervin  v. 
Lewis,  90  111.  505^(1878) ;  Burton  v.  Hintrager,  18  Iowa,  348,  351 
(1865) ;  Grimmell  v.  Warner,  21  id.  13  (1866) ;  White  v.  Ritte- 
myer,  30  id.  272  (1870),  citing  many  cases.  So  by  statute  in 
Missouri,  Riley's  Adm'r  v.  McCord's  Adm'r,  24  Mo.  Rep.  265 
(1857)  (R.  C.  1845,  p.  749) ;  also  in  Michigan,  Albright  v.  Cobb, 
30  Mich.  355  (1874).  See  Jones,  §§  1387, 1388,  for  the  statutes  in 
some  other  states  ;  Baldwin  v.  Allison,  4  Minn.  25  (1860) ;  G-riffin 
V.  Lovell,  42  Miss.  402  (1869) ;  Webster  v.  Calden,  56  Me.  204,  211 
(1868) ;  Dewey  v.  Van  Deusen,  4  Pick.  (Mass.)  19  (1826) ;  Fay 
V.  Cheney,  14  id.  399  (1833) ;  Scott  v.  McFarland,  13  Mass.  309 
(1816) ;  Smith  v.  Dyer,  16  id.  18  (1819) ;  Trimmier  v.  Thomson, 
10  Rich.  (S.  C.)  164  (1877) ;  Gibson  v.  Bailey,  9  N.  H.  168  (1838); 
Pierce  v.  Brown,  24  Vt.  165  (1852) ;  Collamer  v.  Langdon,  29  Vt. 

32  (1856) ;  Weir  v.  Mosher,  19  Wis.  311  (1865).  For  the  English 
cases,  see  Fisher,  §§  359,  360 ;  Hobart  v.  Abbot,  2  P.  Wms.  642 
(1731) ;  Cave  v.  Cork,  2  Y.  &  C.  C.  C.  130  (1843) ;  Wilton  v.  Jones, 
2  id.  244 ;  Meeker  v.  Tanton,  2  Ch.  Ca.  29  (1680) ;  Gobe  v.  Carlisle, 
2  Vern.  67  (1688),  cited  in  Clerkson  v.  Bowyer,  2  id.  67  (1688). 

2  Marsh  v.  Austin,  1  Allen  (Mass.),  235  (1861) ;  Pike  v.  Collins, 

33  Me.  38  (1851). 

^  Griffin  v.  Lovell,  42  Miss.  402  (1869) ;  Dayton  v.  Dayton,  7 
Bradw.  (111.)  136  (1879).     This  is  the  rule  in  New  York. 


52  PARTIES    TO    MORTGAGE    FORECLOSURES. 

they  are  held  indispensable  parties/  Where  a  testator 
dies  pending  his  foreclosure,  his  executor  after  qualifying 
may  revive  the  action ;  and  he  may  do  this,  though  his 
co-executor  be  the  owner  of  the  equity  of  redemption. 
In  such  a  case  it  was  held  advisable  in  reviving  the 
action  to  make  the  co-executor  a  defendant  personally, 
as  he  was  the  owner  of  the  equity  of  redemption,  and 
a  defendant  also  in  his  representative  capacity ;  and 
the  action  was  sustained  upon  the  principle  that  one 
co-executor  may  maintain  an  action  in  equity  against 
another  co-executor  to  compel  the  payment  of  a  debt 
owing  by  him  to  the  estate.'-  The  executor  of  a  trustee 
has  been  allowed  to  foreclose  a  mortgage  held  in  trust 
by  the  decedent,  where  the  trust  was  well  defined  and 
did  not  rest  in  the  discretion  of  the  trustee  f  but  the 
general  rule  is  for  the  successor  of  the  trustee  to 
foreclose.^ 

1  Huggins  V.  Hall,  10  Ala.  283  (1846) ;  Mclver  v.  Cherry,  8 
Hnmph.  (Tenii.)  713  (1848) ;  Atchison  v.  8iirguine,  1  Yerg. 
(Tenii.)  400  (1830).  They  were  necessary  parties  in  Illinois  until 
the  statute  of  1874,  ch.  95,  §  9,  dispensed  with  the  old  rule. 
Dayton  v.  Dayton,  7  (Bradw.)  111.  App.  136  (1879).  In  Etheridge 
V.  Vernoy,  71  N.  C.  184  (1874),  the  heirs  were  held  not  necessary 
where  the  mortgagee  had  assigned  the  bond  and  mortgage  abso- 
lutely and  died  insolvent  without  the  state,  but  ordinarily  the 
heirs  of  the  mortgagee  are  held  necessary  parties.  For  the 
English  cases,  see  Fisher,  5:5  3.59  ;  Scott  v.  Nicoll,  3  Russ.  (Eng.) 
476  (1827) ;  Freak  v.  Hearsey,  1  Ch.  Ca.  (Eng.)  51  (1664) ;  Ellis 
V.  Guavas,  2  id.  50  (1680) ;  Winne  v.  Littleton,  2  id.  51  (1681). 

-  McGregor  v.  McGregor,  35  N.  Y.  218,  222  (1866),  Wright 
and  kSjViiTH,  J  J.,  writing  the  opinions,  and  relying  largely  upon 
Smith  V.  Lawrence,  11  Paige  (N.Y.),  206  (1844).  In  Miller  v.  Don- 
aldson, 17  Ohio  Rep.  264  (1867),  an  administrator  cle  bonU  non 
foreclosed  a  mortgage  belonging  to  the  estate  of  a  testator  whose 
executor  was  his  mortgage  debtor ;  the  fact  that  he  was  made 
executor  was  held  not  to  extinguish  the  debt. 

=*  Bunn  V.  Vaughan,  1  Abb.  App.  Dec.  (N.  Y.)  253  (1867). 

^  See  §§  28  and  30,  post. 


HEIRS,    ETC.,    CANNOT    FORECLOSE.  53 

In  the  foreclosure  of  a  land  contract,  the  rule  as 
stated  above  is  somewhat  limited.  The  personal  repre- 
sentatives of  a  deceased  vendor  may  foreclose  aland  con- 
tract, but  they  must  either  show  that  they  have  ten- 
dered, and  are  able  and  ready  to  give  a  deed  with  a  good 
title,  or  else  they  must  make  the  heirs  or  devisees  of 
the  deceased  vendor,  inheriting  his  legal  title,  parties  to 
the  action,  so  that  they  may  be  bound  by  the  decree. 
Upon  this  subject  Judge  Earl  has  said  that  "  by  the 
contract  of  sale,  the  land  conveyed  became  real  estate 
in  the  purchasers,  and  would  descend  as  such  to  their 
heirs  or  devisees.  The  vendor  held  the  legal  title  as 
trustee  for  the  purchasers.  The  purchase-money  due 
upon  the  contract  was,  as  to  him,  personal  estate,  and 
upon  his  death  passed  to  his  personal  representatives,  as 
part  of  his  personal  estate ;  and  the  legal  title  to  the 
real  estate  passed  to  his  heirs  or  devisees  in  trust  for  the 
purchasers."^ 

§  25.  Ov^ner    of   mortgage    dying,    heirs,    devisees    and 
legatees  generally  cannot  foreclose. 

As  has  been  shown  in  the  preceding  section,  the 
heirs  of  a  deceased  mortgagee  take  no  title  whatever  to 

1  Thomson  v.  Smith,  63  N.  Y.  301,  303  (1875),  citing  Dart  on 
Purchasers  and  Vendors,  121 ;  Lewis  v.  Smith,  9  id.  502,  510 
<1854) ;  Moyer  v.  Hinman,  13  id.  180  (1855) ;  Moore  v.  Burrows, 
34  Barb.  (N.  Y.)  173  (1861) ;  Adams  v.  Green,  ib.  176  ;  Champion  v. 
Brown,  6  Johns.  Ch.  (N.  Y.)  398  (1822).  In  Schroeppel  v.  Hopper,  40 
Barb.  (N.  Y.)  425  (1863),  the  heirs  at  law  of  a  decedent  executed 
to  his  administrator  a  deed  of  their  title  to  the  premises  to  enable 
her  to  transfer  it  to  the  purchaser  in  fulfillment  of  a  land  contract, 
and  the  court  held,  in  an  action  to  foreclose  the  land  contract, 
that  the  heirs  were  not  necessary  parties.  In  Leaper  v.  Lyon, 
68  Mo.  Rep.  216  (1878),  on  the  other  hand,  the  heirs  were  held 
necessary  parties,  even  though  a  deed  executed  by  them  had  been 
tendered  to  the  vendee  by  the  personal  representatives.  See 
Anshutz'  Appeal,  34  Penn.  375  (1859).  ^ 


54  PARTIES    TO    MORTGAGE    FORECLOSURES. 

the  bond  and  mortgage ;  consequently,  having  no  in- 
terest in  the  security,  they  cannot  maintain  an  action 
for  its  foreclosure.^  In  a  case  where  no  personal  repre- 
sentative had  been  appointed,  an  heir  was  allowed  to 
foreclose  on  filing  an  indemnifying  security  to  protect 
the  mortgagor  from  being  subsequently  called  upon  for 
payment."  Neither  can  an  heir  make  such  an  assignment 
of  a  mortgage  as  will  entitle  the  assignee  to  maintain  a 
foreclosure.'^  Where  a  mortgagee  died  pending  a  fore- 
closure, his  heirs  were  allowed  to  revive  the  action;  * 
and  after  administration  had  been  closed  upon  the  affairs 
of  a  decedent,  his  distributees  were  allowed  to  fore- 
close a  mortgage  belonging  to  his  estate.^  In  an  action 
to  redeem  from  a  mortgage,  the  heirs  and  personal 
representatives  of  the  mortgagee  have  both  been  held 
necessary  parties.^ 

Where,  however,  a  mortgage  is  specifically  bequeathed 
to  a  legatee,  the  entire  title  passes  to  him,  and  he  may 
foreclose  the  mortgage.^     But  even  in  such  a  case  it  has 

1  Anthony  v.  Peay,  18  Ark.  24  (1856) ;  Roath  v.  Smith,  5 
Conn.  135,  139  (1823);  Kinna  v.  Smith,  2  Green  Ch.  (N.  J.)  14 
(1834).  Contra,  English  authorities :  Fisher,  §  364 ;  Gobe  v. 
Carlisle,  2  Vern.  67  (1688) ;  Clerkson  v.  Bowyer,  2  id.  67  (1688). 
See  §  24,  arite,  and  the  cases  cited. 

2  Babbitt  v.  Bowen,  32  Vt.  437  (1859). 

3  Douglass  V.  Durin,  51  Me.  121  (1863). 

4  Atchison  v.  Surguine,  1  Yerg.  (Tenn.)  400  (1830) ;  Mclver  v. 
Cherry,  8  Humph.  (Tenn.)  713  (1848). 

5  Hill  V.  Boyland,  40  Miss.  618  (1866). 

6  Hilton  V.  Lothrop,  46  Me.  297  (1858) ;  Haskins  v.  Hawkes, 
108  Mass.  379  (1871). 

7  Trenton  Banking  Co.  v.  Woodruff,  1  Green  Ch.  (N.  J.)  117 
(1838) ;  White  v.  Secor,  58  Iowa,  533,  536  (1822) ;  Grimmell  v. 
Warner,  21  id.  13  (1866).  For  the  English  authorities,  see  Fisher, 
§  355 ;  Wethrell  v.  Collins,  3  Madd.  (Eng.)  255  (1818) ;  Wood  v. 
Williams,  4  id.  186  (1819) ;  Hichens  v.  Kelly,  2  Sm.  &  G.  (Eng.) 
264  (1854).  The  heir  is  not  a  necessary  party.     Fisher,  §  359  ; 


MORTGAGE  MADE  TO  AN  EXECUTOR.         55 

been  held  that  the  personal  representatives  should  be 
made  defendants.^  Where  the  legacy  is  made  a  general 
bequest  to  be  paid  out  of  the  mortgage,  the  action  may 
properly  be  brought  by  the  executor,  making  the  legatee 
a  defendant  f  and  an  executor  has  been  allowed  to 
foreclose,  even  where  the  mortgage  has  been  specifically 
bequeathed.'  It  is  believed  that  such  a  foreclosure  will 
always  be  allowed,  if  there  should  be  a  deficiency  of 
assets  to  pay  the  decedent's  debts. 

§  26.  Mortgage  executed  to  an  executor  or  administrator, 
the  executor  or  administrator  or  his  successor 
in  office  may  foreclose. 

Whenever  a  bond  and  mortgage  are  executed  or 
assigned^  to  the  personal  representative  of  a  decedent, 
to  secure  assets  belonging  to  his  estate,  the  personal 
representative  may  bring  an  action  in  his  official 
capacity  for  foreclosure.  The  same  principle  is  true 
where  a  personal  representative  holds  funds  in  the 
capacity  of  a  trustee ;  and  the  fact  that  the  invest- 
ment of  trust  funds  in  bonds  and  mortgages  is  so 
highly  favored  by  courts,  renders  this  principle  very 
important  in  the  administration  of  estates.  The 
persons  beneficially  interested  need  not  be  brought 
into    the    action.^      The    character    of    the    personal 

How  V.  Vigures,  1  Rep.  in  Ch.  (Eng.)  32  (1629) ;  Skipp  v.Wyatt, 

1  Cox  (Eng.),  353  (1787). 

^  Gibbe.s  v.  Holmes,  10  Rich.  Eq.  (S.  C.)  484,  493  (1859). 

2  Newton  v.  Stanley,  28  N.  Y.  61  (1863).     See  Buck  v.  Fischer, 

2  Col.  T.  182  (1873). 

='  Cryst  V.  Cryst,  Smith  (Ind.),  370  (1848-49). 

*  Flagg  V.  Johnston,  39  Ga.  26  (1869). 

•'  For  the  English  cases  see  Wood  v.  Harman,  5  Madd.  368 
(1820) ;  Locke  v.  Lomas,  5  De  G.  &  S.  326  (1852) :  16  Jur.  814 
(1852-3). 


56  PARTIES    TO    MORTGAGE    FORECLOSURES. 

representative  should  clearly  appear  in  the  bond 
and  mortgage,  and  must  be  specifically  alleged  in  the 
pleadings  to  foreclose.^  In  the  leading  case  of  Peck  v. 
Mallams^-  the  mortgagee  was  described  as  "T.  B.,  exec- 
utor of  the  estate  of  T.  T.,  deceased ;"  prima  facie,  the 
mortgage  was  held  to  be  the  private  property  of  T.  B. 
After  the  death  of  T.  B.,  an  administrator  of  T.  T.,  with 
the  will  annexed,  filed  a  bill  for  the  foreclosure  of  the 
mortgage.  The  court  held  that  the  personal  representa- 
tives of  T.  B.  were  necessary  parties,  and  that  the 
plaintiff  should  show  by  proper  allegations  that  the 
mortgage  was  a  part  of  the  assets  of  the  estate  of  T.  T. 
In  a  similar  case,'  a  mortgage  was  executed  to  "P.,  acting 
executor  of  the  estate  of  D."  Upon  the  death  of  P.  it  was 
held  that  the  mortgage  belonged  j9rma/«cze  to  his  estate, 
and  could  be  foreclosed  by  his  personal  representatives, 
but  later  the  court  decided  that  evidence  was  admissible 
showing  the  real  ownership  of  the  mortgage,  and  it  then 
appearing  that  it  actually  belonged  to  D.,  the  personal 
representatives  of  P.  were  not  allowed  to  maintain  the 
action. 

1  Flagg  V.  Johnston,  39  Ga.  26  (1869). 

2  10  N.  Y.  509,  587,  546  (1853),  opinions  by  Willard,  Johnson 
and  Mason,  JJ.  In  People  v.  Keyser,  28  N.  Y.  226  (1863), 
(reported  below  in  39  Bavb.  587 ;  17  Abb.  215),  a  mortgage  was 
made  to  "  M.  &,  W.,  executors  of  E. ;"  after  the  death  of  M.,  the 
question  arose  as  to  whether  W.,  the  surviving  executor,  could 
execute  a  sufficient  discharge  of  the  mortgage,  and  whether  the 
executors  of  M.  ought  not  to  unite  with  him  in  executing  the  dis- 
charge. It  was  held  that  the  discharge  by  W.  was  sufficient. 
Quaere,  as  to  whether  the  surviving  mortgagee  could  not  have 
maintained  an  action  for  the  foreclosure  of  the  mortgage,  if  he 
had  sufficient  authority  to  execute  a  discharge  of  the  debt.  See 
§  11,  ante.,  on  the  doctrine  of  survivorship  among  joint  mortgagees. 

•^  Renaud  v.  Conselyea,  4  Abb.  (N.  Y.)  280  (1856) ;  5  id.  346 
(1857).  On  re-arguraent.  Strong,  J.,  revised  his  opinion,  writing 
the  decision  in  7  id.  105  (1858). 


FORECLOSURE    BY    FOREIGN    EXECUTORS,    ETC.  57 

When  a  mortgage  is  made  to  A.,  as  executor  or  ad- 
ministrator, his  successor  in  office  receives  the  legal  title 
to  the  mortgage,  and  may  foreclose  it.  The  personal 
representatives  of  A.  have  nothing  whatever  to  do  with 
the  bond  and  mortgage,  which  legally  and  equitably 
belong  to  the  assets  of  the  deceased  person  whom  he 
represented,^  Thus  a  mortgage  had  been  executed  to 
an  administrator  to  secure  a  widow's  dower ;  upon  his 
death  his  successor  and  not  his  personal  representative 
was  allowed  to  foreclose,^ 

§  27.  Foreign  executors  and  administrators,  when  they 
may  foreclose. 

For  more  than  a  half  century  it  has  been  well 
established  as  a  principle  of  inter-state  law,  that  an 
executor  or  administrator,  appointed  in  a  foreign 
political  jurisdiction,  cannot  maintain  a  suit  in  the 
courts  of  other  states  ;  and  the  word  "  foreign  "  is  used 
in  each  state  to  designate  all  jurisdictions  and  laws 
without  itself.  While  foreign  laws  are  recognized  in 
all  courts  under  the  principle  of  lex  loci  contractus,  the 
machinery  used  for  the  enforcement  of  such  laws  in 
their  native  jurisdictions  is  never  recognized  or  allowed 
in  any  other  jurisdiction.  "  The  right  which  an  in- 
dividual may  claim  to  personal  property  in  one  country, 
under  title  from  a  person  domiciled  in  another,  can  only 
be  asserted  by  the  legal  instrumentalities  which  the 
institutions  of  the  country  where  the  claim  is  made- 
have  provided.  The  foreign  law  furnishes  the  rule  of 
decision   as  to  the  validity  of  the  title  to  the   thing 

1  Renaud  v.  Conselyea,  supra.     Hee  i?  80,  post. 

2  Brooks  V.  ymyser,  48  Perm.  86  (1864). 


58  PARTIES    TO    MORTGAGE    FORECLOSURES. 

claimed ;  but  in  respect  to  the  legal  assertion  of  that  title 
it  has  no  extra-territorial  force.  As  a  result  of  this 
doctrine  it  is  now  generally  held  everywhere,  and  it  is 
well  settled  in  this  state,  that  an  executor  or  adminis- 
trator appointed  in  another  state  has  not,  as  such,  any 
authority  beyond  the  sovereignty  by  virtue  of  whose 
laws  he  was  appointed."^  Accordingly  a  foreign  executor 
or  administrator  cannot  foreclose  a  mortgage  by  an 
equitable  action  in  New  York.-' 

If  a  foreign  personal  representative  desires  to  fore- 
close a  mortgage  in  New  York,  or  in  any  state  outside 
of  the  political  jurisdiction  in  which  he  was  appointed, 
it  is  necessary  for  him  to  take  out  letters  testamentary 
or  of  administration  in  some  probate  court  within  the 
state  where  the  mortgaged  premises  are  situated ; 
otherwise  he  cannot  obtain  such  a  standing  in  a 
court  of  equity  as  will  enable  him  to  maintain  an 
action  for  foreclosure.'^  "  It  is  not  because  the  ex- 
ecutor or  administrator  has  no  right  to  the  assets  of  the 
deceased,  existing  in  another  country,  that  he  is  refused 

^  Parsons  v.  Lyman,  20  N.  Y.  10;>  (1859),  per  Denio,  J.,  citing 
Morrell  v.  Dickey,  1  Johns.  Ch.  (N.  Y.)  153  (1814);  Doolittle  v. 
Lewis,  7  id.  45  (1823) ;  Vroom  v.  Van  Home,  10  Paia^e  (N.  Y.), 
549  (1844). 

-  Petersen  v.  Chemical  Bank,  32  N.  Y.  21,  40  (1865),  affirming 
29  How.  240;  Parsons  v.  Lyman,  swpra,  p.  112;  Stone  v.  Scrip- 
ture, 4  Lans.  (N.  Y.)  186  (1870) ;  Smith  v.  Webb,  1  Barb.  (N.  Y.) 
232  (1847);  Vermilya  v.  Beattv,  6  id.  429  (1848);  Lawrence  v. 
Ehnendorf,  5  id.  73  (1848) ;  Brown  v.  Brown,  1  Barb.  Ch.  (N.  Y.) 
189  (1845) ;  Williams  v.  Storrs,  6  Johns.  Ch.  (N.  Y.)  353  (1822). 
See  the  cases  cited  above. 

•*  See  the  cases  cited  in  the  preceding  notes  to  this  sectiou. 
Porter  v.  Trail,  30  N.  J.  Eq.  106  (1878);  Woodruff  v.  Mutschler, 
34  id.  33  (1881),  and  note ;  Trecothick  v.  Austin,  4  Mason 
(U.  S.),  633  (1825);  contra,  Heywood  v.  Hartshorn,  55  N.  H.  476 
(1875). 


FORECLOSURE    BY    FOREIGN    EXECUTORS,    ETC.  59 

a  standing  in  the  courts  of  such  country,  for  his  title  to 
such  assets,  though  conferred  by  the  law  of  the  domi- 
cile of  the  deceased,  is  recognized  everywhere.  Reasons 
of  form,  and  a  solicitude  to  protect  the  rights  of 
creditors  and  others,  resident  in  the  jurisdiction  in 
which  the  assets  are  found,  have  led  to  the  disability 
of  foreign  executors  and  administrators,  which  disa- 
bility, however  inconsistent  with  principle,  is  very 
firmly  established."^ 

This  rule,  requiring  a  foreign  personal  representative 
to  take  out  letters  testamentary  or  of  administration, 
may,  however,  be  avoided  by  his  making  an  assignment 
of  the  bond  and  mortgage  to  some  person  residing  in 
the  state  where  the  premises  are  situated ;  and  the 
assignee  may  maintain  an  action  for  their  foreclosure. 
It  seems  that  the  disability  of  a  foreign  executor  or 
administrator  to  sue  in  other  states  does  not  attach  to 
the  subject-matter  of  the  action,  but  to  the  person  of  the 
plaintiff  1^  So  a  foreign  specific  legatee  of  a  bond  and 
mortgage  may  foreclose,  on  the  ground  that  he  is  legally 
and  equitably  the  absolute  owner  of  them."  But  such 
a  foreclosure  by  a  specific  legatee  or  an  assignee  does 

1  Peterson  v.  Chemical  Bank,  32  N.  Y.  43.  Hiram  Denio,  Ch. 
J.,  has  written  the  opinions  in  the  leading  cases  of  Parsons  v. 
Lyman  (1859),  and  Peterson  v.  Chemical  Bank  (1865),  with  so 
much  learning  and  with  such  clearness,  after  an  exhaustive 
review  of  all  the  cases  which  in  any  way  affect  the  principles  stated 
in  this  section,  that  they  are  worthy  of  the  careful  study  of  any 
one  who  has  occasion  to  examine  the  law  alBFecting  the  extra-ter- 
ritorial rights  of  foreign  executors  and  administrators.  Attention 
is  also  called  to  the  elaborate  briefs  printed  with  the  opinion  in 
Peterson  v.  Chemical  Bank. 

2  Peterson  v.  Chemical  Bank,  supra ;  Smith  v.  Webb,  1  Barb. 
(N.  Y.)  232  (1847) ;  Smith  v.  Tiffany,  16  Hun  (N.  Y.),  552  (1879), 
per  Hardin,  J.,  collating  and  reviewing  the  cases  upon  this  point. 

^  Smith  V.  Webb,  supra. 


60  PARTIES    TO    MORTGAGE    FORECLOSURES. 

not   produce    a   perfect   record-title,    inasmuch    as    no 
evidence  of  the  authority  of  the  personal  representative 
to  act  in  the  place  of  the  deceased  mortgagee,  and  to 
execute  a  proper  assignment  of  the  mortgage,  is  to  be 
found  in  the  state. ^     Where  a  voluntary  payment  of  the 
mortgage  debt  is  made  by  the  mortgagor  to  a  foreign 
executor  or  administrator  of  the  mortgagee,  such  pay- 
ment will  discharge  the  debt  and  cancel  the  lien.    "  The 
result  of  the  cases  seems  to  be  that  a  foreign  executor 
or  administrator  appointed  by  the  proper  tribunal  of 
the  decedent's  domicile,  is  authorized  to  take   charge 
of  the  property  here  and  to  receive  debts  due  to  the 
decedent  in  this  state,  where  there  was  no  conflicting 
grant  of  letters  here,  and  where  it  could  be  done  without 
suit."'^     But  in  a  recent  case  in  New  York,  where  an 
administrator  had  been  appointed  upon  the  estate  of  a 
deceased  non-resident,  and  the  mortgagor  nevertheless 
paid  his  mortgage  debt  to  a  foreign  administrator  who 
was  subsequently  appointed  at  the  intestate's  place  of 
residence,  the  domestic  administrator  in  New  York  was 
allowed  to  foreclose  the  bond  and  mortgage,  and  the 
court  determined  that  under  the  circumstances  pay- 
ment to  the  foreign  administrator  was  no  defense  to  the 
action.''     In  foreclosures,  as  in  other  actions,  an  objec- 
tion that  the  plaintiff  is  a  foreign  executor  or  adminis- 
trator,  and   therefore  legally  disqualified  from  suing, 

1  Smith  V.  Tiffany,  supra. 

2  Vroom  V.  Van  Home,  10  Paiii^e  (N.  Y.),  549  (1844),  per 
Chancellor  Walworth,  cited  with  approval  and  quoted  by 
Denio,  J.,  in  Parsons  v.  Lyman,  supra,  p.  115.  The  same  prin- 
ciple is  stated  as  fi^ood  law  by  Judge  Story,  in  Trecothick  v. 
Austin,  4  Mason  (tJ.  S.),  33  (1825). 

3  Stone  V.  Scripture,  4  Lans.  (N.  Y.)  186  (1870). 


TRUSTEES  MAY  FORECLOSE.  61 

must  be  taken  by  demurrer  or  answer,  or  it  will  be  con- 
sidered waived.^ 

It  is  stated  by  Mr.  Thomas"  that  the  foreclosure  of 
a  mortgage  by  advertisement  under  a  power  of  sale,  and 
pursuant  to  statute,  is  a  matter  of  contract  and  not 
of  jurisdiction,  and  that  a  foreign  executor  or  admin- 
istrator may  therefore  adopt  that  method  of  foreclosure 
without  seeking  the  authority  of  our  courts  of  probate. 

§  28.  Trustees  may  foreclose. 

It  may  be  stated  as  a  general  rule  that  a  person  who 
is  in  any  manner  appointed  the  trustee  of  a  person 
owning  a  mortgage  or  an  interest  therein,  may  maintain 
an  action  in  his  own  name,  as  trustee,  for  its  fore- 
closure.''    So,  also,  a  trustee,    like    a   personal   repre- 

1  McBride  v.  Farmers'  Bank  of  Salem,  26  N.  Y.  457  (186S) ; 
Zabriskie  v.  Smith,  13  id.  322,  326  (1855) ;  Robbins  v.  Wells, 
26  How.  (N.  Y.)  15  (1863). 

-  Thomas  on  Mortgages,  p.  243,  citing  as  authority,  Averill  v. 
Taylor,  5  How.  (N.  Y.)  476  (1850),  Doolittle  v.  Lewis,  7  Johns. 
Ch.  (N.  Y.)  45  (1823) ;  but  it  is  very  doubtful  whether  this  propo- 
sition would  be  approved  at  the  present  day.  The  latter  case 
was  decided  by  Chancellok  Kent  in  1823,  under  a  statute 
"which  made  provision  for  the  foreclosure  of  mortgages  containing 
a  power,  and  the  mortgage  in  that  case  contained  a  special 
power  which  led  the  chancellor  to  say  that  the  foreclosure  was  a 
matter  of  private  contract  and  not  of  court  jurisdiction.  He 
cited  a  colony  statute  as  old  as  1774.  The  court,  in  Averill  v. 
Taylor,  seemed  to  be  in  much  doubt  as  to  whether  this  proposi- 
tion was  good  law,  and  with  some  hesitation  relied  upon 
Chancellor  Kent's  opinion.  See  Demorest  v.  Wynkoop,  3 
Johns.  Ch.  (N.  Y.)  129  (1817).  The  proposition,  however,  is  sup- 
ported by  the  late  case  of  Hayes  v.  Fray,  54  Wis.  503,  518  (1882), 
which  relies  upon  Doolittle  v.  Lewis. 

^  Fisher,  §§  355,  358,  365.  For  the  English  cases,  see  Osbourn  v. 
Fallows,  Russ.  &  M.  741  (1830) ;  Adams  v.  Paynter,  1  Coll.  530  ; 
Smith  V.  Chichester,  2  Dru.  &  War.  404  (1839) ;  Browne  v. 
Lockhart,  10  Sim.  426  (1840);  Wilton  v.  Jones,  2  Y.  &  C.  C. 
C.  244  (1843) ;  Allen  v.  Knight,  5  Hare,  280  (1846) ;  Barkley  v. 
Lord  Reay,  2  id.  306  (1843). 


62  PARTIES    TO    MORTGAGE    FORECLOSURES. 

sentative,  to  whom  a  mortgage  is  executed  to  secure 
funds  of  the  trust  estate,  may  foreclose  in  his  own 
name  as  such  trustee/  When  the  trust  is  merely 
nominal,  it  is  usual  for  the  trustee  to  join  the  cestuis 
que  trust  with  him  as  co-plaintiffs ;  indeed,  some  courts 
have  held  that  the  beneficiaries  are  necessary  parties 
plaintiff.^  It  is  believed,  however,  that  if  a  beneficiary 
refuses  to  become  a  co-plaintiff,  he  can  be  made  a  defend- 
ant f  at  least  it  is  best,  when  possible,  to  bring  all  parties 
interested  in  the  trust  within  the  jurisdiction  of  the 
court. 

Where  the  number  of  beneficiaries  is  so  large  that 
great  inconvenience  and  expense  would  be  incurred  by 

1  Hackensack  Water  Co.  v.  De  Kav,  36  N.  J.  Eq.  548  (1883) ; 
Hayes  v.  Dorsev,  5  Md.  Rep.  99  (1853),  act  of  1833,  chap.  181. 
In  Hays  v.  G.  G.  L.  &  C.  Co.,  29  Ohio  Ht.  330  (1876),  the  trustee 
owned  in  his  own  rig^ht  no  part  of  the  mortgage  debt,  ajid  the 
relation  of  trustee  did  not  appear  on  the  face  of  the  notes  or 
mortgage.     See  §  26  ante ;  New  York  Code,  §  449. 

2  Stillwell  V.  McNeely,  1  Green  Ch.  (N.  J.)  305  (1840) ;  Free- 
man V.  Scofield,  16  N.  J.  Eq.  28  (1863) ;  Woodruff  v.  Depue,  14  id. 
168, 176  (1861) ;  Large  v.  Van  Doren,  14  id.  208  (1861) ;  Hitchcock's 
Heirs  v.  U.  S.  Bank  of  Penn.,  7  Ala.  386  (1862);  Davis  v.  Hem- 
ingway, 29  Vt.  438  (1857) ;  Fleming  v.  Holt,  12  W.  Va.  143 
(1877).  In  Cassidy  v.  Bigelow,  25  N.  J.  Eq.  112  (1874),  the 
trustee  and  cestui  que  trust  united  as  plaintiffs.  In  Wright  v. 
Bundy,  11  Ind.  398  (1858),  it  was  held  that  the  beneficiaries  were 
not  necessary  parties,  but  that  they  might  properly  be  united 
as  co-plaintiffs,  contra  to  the  text.  This  case  was  twice  argued 
very  thoroughly  by  able  counsel.  For  the  English  authorities, 
see  Fisher,  §  367  ;  Groldsmid  v.  Htonehewer,  9  Hare  Append.  39  ; 
17  Jur.  199  (1852),  holding  that  the  beneficiaries  are  unnecessary 
parties;  see  Wood  v.  Harman,  5  Madd.  368(1820);  Locke  v, 
Lomas,  5  De  G.  &  S.  326  ;  16  Jur.  814  (1852) ;  but  where  the 
trustee  had  died,  it  was  deemed  best  to  make  the  cestuis  que 
trust  parties.     Stanslield  v.  Hobson,  16  Beav.  189  (1852). 

3  Large  v.  Van  Doren,  1  McCarter  (14  N.  J.  Eq.),  208  (1862); 
Davis  v.  Hemingway,  29  Vt.  438  (1857).  See  Fisher,  §  373 ;  for 
English  cases,  see  Minn  v.  Staiit,  12  Beav.  190  (1849) ;  15  id.  49; 
Browne  v.  Lockhart,  10  Sim.  426  (1840). 


TRUSTEES  MAY  FORECLOSE.  63 

making  them  parties  to  the  bill  of  foreclosure,  the  courts 
may,  in  their  discretion,  dispense  with  a  strict 
adherence  to  this  rule.^  Thus,  in  one  case  a  mortgage 
was  executed  to  a  person  as  "  the  agent  and  trustee  of 
the  several  subscribers  to  the  loan,"  which  was  of 
large  amount ;  the  mortgagee  was  allowed  to  file  a  bill 
for  foreclosure  in  his  own  name,  without  bringing  the 
beneficiaries  into  the  action.^  The  complaint  in  such  a 
case  should  state  that  the  foreclosure  is  for  the  benefit 
of  the  bondholders,  and  that  they  are  too  numerous  to 
be  made  parties/^ 

In  the  foreclosure  of  railroad  mortgages  this  limita- 
tion has  become  so  well  established  as  to  be  a  separate 
rule;  the  bondholders  are  never  necessary  nor  proper 
parties  plaintiff  or  defendant,  but  there  may  be  circum- 
stances which  would  authorize  the  court  to  admit  any 
of  them  as  defendants  on  their  own  application.'^  An- 
other limitation  to  the  general  rule  is  made  in  cases  where 
a  trustee  is  appointed  to  receive  and  administer  a  fund 
for  the  benefit  of  creditors ;  he  may  foreclose  without 
bringing  the  creditors  before  the  court.^  In  some  cases 
the  creditors  are  so  numerous  that  it  would  be   simply 

1  See  §§  29  and  83,  post,  for  English  and  other  authorities ; 
Fisher,  §  374.  In  point,  Swift  v.  Stebbins,  4  Stew.  &  Port.  (Ala.) 
447  (1833).  In  Carpenter  v.  Canal  Co.,  35  Ohio  St.  307  (1880), 
the  lienholders  were  so  numerous  that  it  was  impracticable  to 
bring  them  all  before  the  court,  and  one,  as  trustee,  prosecuted 
for  all.  Bardstown  &  Louisville  R.  R.  Co.  v.  Metcalfe,  4  Mete. 
<Kv.)  199  (1862).     Jones,  §  1383. 

2  Willink  V.  Morris  Canal  Banking  Co.,  3  Green  (N.  J.),  377 
(1843). 

3  King  V.  The  Merchants'  Exchange  Co.,  5  N.  Y.  547  (1851 ) ; 
Carpenter  v.  Blackhawk   Gold  Mining  Co.,  65  id.  43  (1875). 

*  See  Jones  on  Railroad  Securities,  §§  431-437. 

5  Christie  v.  Herrick,  1  Barb.  Ch.  (N.  Y.)  254  (1845). 


64  PARTIES    TO    MORTGAGE    FORECLOSURES. 

impossible  to  make  all  of  them  parties  to  the  action; 
furthermore,  creditors  are  often  described  as  a  class,  and 
not  by  their  individual  names. 

§  29.  Beneficiaries,    cestuis    que    trust,    may    sometimes 

foreclose. 

It  is  stated  by  Justice  Story,  on  the  authority  of 
English  cases,  that  a  beneficiary,  or  cestui  que  trust,  may 
maintain  an  action  for  the  foreclosure  of  a  mortgage  be- 
longing to  his  trust  estate,  or  in  which  he  has  an  in- 
terest.^ So  one  or  two  beneficiaries  may  bring  a  fore- 
closure for  themselves  and  other  beneficiaries,"-  especially 
if  the  trustee  is,  for  any  reason,  disqualified  from  acting.^ 
But  in  such  cases  it  is  also  necessary  to  make  the  trustee 
a  party  plaintiff  or  defendant  to  the  action,  as  the  legal 
title  to  the  mortgage,  if  not  the  equitable  title,  is  vested 


1  Story  Eq.  PL,  §g  201,  209  ;  Wood  v.  Williams,  4  Madd.  (Eng.) 
186  (1819) ;  Hickeiis  v.  Kelly,  2  Sm.  &  G.  (Eng.)  264  (1854) ; 
Martin  v.  McReynolds,  6  Mich.  70  (1858) ;  Somes  v.  Skinner,  16 
Mass.  348  (1820) ;  Hackensack  Water  Co.  v.  De  Kay,  36  N.  J. 
Eq.  548  (1883)  ;  McGowan  v.  Branch  Bank  Mobile,  7  Ala.  823 
(1845) ;  Marriott  v.  Givens,  8  id.  694  (1846) ;  Carradine  v.  O'Con- 
nor, 21  id.  573  (1852) ;  Ala.  Life  Ins.  &  Trust  Co.  v  Pettway,  24 
id.  544  (1854) ;  Mitchell  v.  McKinney,  6  Heisk.  (Tenn.)  83  (1871). 
See  New  York  Code,  §  449. 

2  Berry  v.  Bacon,  6  Ciish.  (Miss.)  318  (1854). 

3  See  Ashhiirstv.  Montour  Iron  Co.,  35  Penn.  St.  30(1860),  where 
the  cestuis  que  trust  were  numerous  bondholders,  and  the  trustee 
was  for  some  reason  disqualified  from  actinsc.  Wintou's  Appeal,  87 
Penn. 77(1878).  In  Bank  of  Commerce  v.Lanahan,4.oMd.  396(1876), 
a  deed,  intended  as  a  mortgage,  was  executed  to  oije  of  a  number 
of  creditors  to  secure  his  own  claim  and  the  claims  of  others  ;  it 
was  held  that  the  cestuis  que  trust  could  not  maintain  an  action  for 
foreclosure,  although  the  grantee  in  the  deed  was  a  trustee,  and 
the  other  creditors  were  beneficiaries.  But  in  Dorsey  v.  Thomp- 
son, 37  Md.  25  (1872),  the  cestuis  que  trust  foreclosed  a  mortgage, 
making  the  trustee  a  defendant. 


PERSONS  IN  OFFICIAL  CAPACITY  MAY  FORECLOSE.  65 

in   him.'     The  best  practice  is   for  the  trustee  and  the 
beneficiary  to  unite  as  co-plaintiffs.' 


§  30.  Mortgages  to  persons  in  official  capacity  ;  they  or 
their  successors  may  foreclose. 

A  person  to  whom  a  bond  and  mortgage  are  executed 
in  an  official  capacity  may  foreclose  the  same  in  his  own 
name  as  such  officer,  as  he  holds  the  entire  legal  title ; 
the  real  party,  who  equitably  ow^ns  the  fund,  is  not  held 
a  necessary  party  to  the  action.  So  also  a  successor  in 
office  may  foreclose  in  his  own  name  as  such  officer,  as 
the  courts  hold  him  to  be  the  equitable  assignee  of  the 
security.'^  His  predecessor,  in  whose  name  the  mort- 
gage was  taken,  need  not  be  jjrought  into  the  action, 
and  upon  his  death  his  personal  representatives  are  not 
necessary  parties.  The  rule  of  this  section  is  in  har- 
mony with  the  principles  stated  in  §§  26  and  28,  as  to 
executors,  administrators  and  trustees.  Thus  the  suc- 
cessor of  a  receiver  of  an  insolvent  corporation  is 
allowed  to  sue  in  his  own  name  as  such  receiver.* 
Illustrations  may  be  taken  from  the  reported  cases, 
where    mortgages    have    been    given    to    guardians   of 


1  111  Hays  V.  Lewis,  21  Wis.  668  (1867),  the  trustee  was  held 
an  indispensable  party,  and  it  was  questioned  whether  the  cestui 
que  trust  could  niaintaiti  an  action  for  foreclosnre. 

^  See  §  28,  ante,  and  notes. 

3  Iglehart  v.  Bierce,  86  111.  133  (1864). 

^  Iglehart  v.  Bierce,  .s?/pra ;  Leavitt  v.  Pell,  27  Barb.  322; 
affirmed  25  N.  Y.  474  (1862). 

5 


66  PARTIES    TO    MORTGAGE    FORECLOSURES. 

infants  '  and  lunatics,"-  to  the  comptroller  of  a  state,^  to 
the  state  superintendent  of  insurance,^  to  United  States 
loan  commissioners."'  and  to  personal  representatives" 
and  trustees.^ 

§  31.  A  nianled  -woman  o-wning  a  inortgage  may  foreclose. 

It  is  now  a  universal  principle  of  law  in  England  and 
America  that  a  married  woman  can  own  and  control  a 
separate  estate  in  real  and  in  personal  property,  and 
that  she  is  entitled  to  all  the  rights  and  remedies  pertain- 
ing to  property  which  a  feme  sole  possesses,  and  may 
enforce    them    as    fully  in  the    courts.     She  can  own 

1  Lyoi)  V.  Lvoii,  67  N.  Y.  250  (1876);  Cleveland  v.  Cohrs.  10 
Rich.  (8.  C.)  224  (1878).  In  Walter  v.  Wala,  10  Neb.  128  (1880), 
a  note  and  mortgage  were  turned  over  by  an  admiTiistrator  to  a 
guardian  as  a  part  of  Lis  ward's  distributive  share.  In  Com- 
monwealth V.  Watmough,  12  Penn.  8r.  316(1849),  a  mortgage 
was  executed  to  a  guardian;  the  wards,  on  becoming  of  age, 
assigned  their  interests,  and  the  assignee  was  held  to  have  the 
full  legal  title  and  allowed  to  foreclose. 

-  See  Peabody  v.  Peabody,  59  Ind.  556  (1877),  for  an  action 
brought  by  a  guardian  or  committee  of  a  lunatic  to  foreclose  a 
mortgage  executed  to  the  lunatic  while  sane. 

^  Flagg  V.  Munger,  9  N.  Y.  483  (1854),  holding  that  the  comp- 
troller of  New  York  had  power  to  foreclose  a  mortgage  assigned 
to  him  by  a  bank  to  secure  the  redemption  of  its  notes  ;  so  to  the 
treasurer  of  the  state  of  New  Jersey,  Townsend  v.  Smith,  1 
Beas.  (N.  J.  Eq.)  350  (1858).  See  Delaplaine  v,  Lewis,  Governor, 
etc.,  19  Wis.  476(1865) ;  Supervisors  of  Iowa  Co.  v.  Mineral  Point 
R.  R.,  24  id.  93  (1869). 

^  Smith  v.  Munroe,  1  Ired.  (N.  C.)  345  (1840);  Smyth  v.  Lom- 
bardo,  15  Hun  (N.  Y.),  415  (1878),  wliere  the  action  was  in  the 
name  of  the  de})utv. 

5  Powell  .V.  Tuttle,  3  N.  Y.  396  (1850) ;  Olmstead  v.  Elder,  5 
id.  144;  Pell  v.  Ulmar,  18  id.  139  (1858) :  York  v.  Allen,  30  id. 
104  (1864):  Thompson  v.  Comnfrs,  79  id.  54  (1879);  Wood  v. 
Terry,  4  Lans.  (N.  Y.)  80  (1871).  The  foreclosure  of  United 
States  loan  mortgages  is  strictly  statutory,  and  is  governed  by 
the  laws  of  the  United  States,  Laws  of  1837,  ch.  150. 

•^  See  §  26,  ante. 

"  See  i;  28,  ante. 


A    MARRIED    WOMAN    MAY    FORECLOSE  67 

and  foreclose  a  bond  and  mortgage  in  her  own  name, 
and  it  is  not  necessary  for  her  to  make  her  husband 
a  party  to  the  action,  as  he  can  have  no  interest 
in  it.^  Where  a  bond  and  mortgaire  were  made 
to  a  husband  and  wife,  the  wife  was  held  entitled  to 
foreclose  in  her  own  name  on  the  death  of  the  husband, 
uj)on  the  ground  of  survivorship  in  joint  ownership ;' 
and  the  fact  appearing  that  the  money  was  actually  loaned 
by  the  wife,  that  was  held  as  another  circumstance  which 
entitled  her  to  foreclose  in  her  own  name.  And  so  a 
discharge  hy  a  husband  of  a  mortgage  executed  to  him  and 
his  wife,  but  really  belonging  to  her,  will  not  prevent  her 
foreclosing.'^  The  marriage  of  the  mortgagee,  a  fe?ne 
sole,  to  the  mortgagor  does  not  extinguish  the  mortgage ; 
the  mortgage  remains  unaffected  and  may  be  foreclosed.^ 
A  husband  can  execute  a  valid  mortgage  on  his  lands 
to  his  wife,  who  can  foreclose  against  him.''  She  can 
also  foreclose  a  mortgage  assigned  to  her  on  her  hus- 
band's lands.  The  assignment  does  not  operate  as  a  dis- 
charge of  the  mortgage.'' 

1  Bartlett  v.  Boyd,  34  Vt.  25f3  (1861).  So  she  can  assign  her 
mortgage.    Kaniena  v.  Hnelbio-,  23  N.  J.  Eq.  78  (1872). 

2  Shockley  v.  Shockley,  20  Ind.  108  (1863). 

^  McKinney  v.  Hamilton,  51  Penn.  63  (1865). 

*  This  has  bei^n  the  law  in  New  York  since  the  act  of  1848. 
Power  V.  Lestei,  17  How.  413,  afl["d  23  N.  Y.  527  (1861),  a  lead- 
ing case. 

5  Wochoska  v.  Wochoska,  45  Wis.  423  (1878);  Putnam  v. 
Bicknell,  18  Wis.  333  (1864) ;  Mix  v.  Andes  Ins.  Co.,  9  Hun 
(N.  Y.),  397  (1876).  vSuch  a  mortgao^e  was  held  void  in  Terry  v. 
Wilson,  63  Mo.  Rep.  493  (1876). 

e  Bean  v.  Boothby,  57  Me.  295  (1869) ;  Trenton  Banking  Co.  v. 
Woodruff,  1  Green  Ch.  (N.  J.)  117  (1838). 


PART    II. 

PARTIES  DEFENDANT— NECESSARY  TO  PER- 
FECT THE  TITLE. 


CHAPTER  I. 

OWNERS    OF    THE    FEE    TITLE. 

32.  Introductory. 

33.  General  principles. 

34.  Mortgagor  still  owning  the  equity  of  redemption  nec- 

essary. 

35.  Mortgagor  no  longer  owning  the  equity  of  redemp- 

tion not  necessary. 

36.  Mortgagor  still  holding  only  a  divided  or  undivided 

part  of  the  premises,  or  being  a  tenant  in  common 
by  descent  or  grant,  a  necessary  party. 

37.  Mortgagor  still  holding  any  kind  of  an  equitable,  con- 

tingent or  latent  interest,  generally  necessary. 

38.  The  purchaser  and  owner  of  the  equity  of  redemption 

by  grant  or  otherwise  from  the  mortgagor  necessary. 

39.  Intermediate  purchasers  and  owners  of  the  equity  of 

redemption,  who  are  no  longer  owners,  generally  not 
necessary. 

40.  Purchaser  pendente  lite  not  necessary. 

41.  Common-law  doctrine  of  lis  pendens. 

42.  New  York  statutory  provisions  for  lis  pendens;  other 

states. 


70  PARTIES    TO    MORTGAGE    FORECLOSURES. 

§  43.     Mortgagor  a  married  woman,  having  a  separate  estate, 
necessary. 

44.  Wife  of  mortgagor  or  owner  of  the  equity  of  redemp- 

tion i;ecessary. 

45.  Wife  of  mortgagor ;  service  of  summons  or  process. 

46.  Wife  of  mortgagor  or  owner  of  the  equity  of  redemp- 

tion not  necessary  in  those  states  where  the  common- 
law  doctrine  of  dower  is  changed. 

47.  The  husband  of  a  mortgagor  who  is  a  married  woman, 

having  a  separate  estate,  generally  not  necessary. 

48.  Heirs  of  mortgagor  or  owner  of  the  equity  of  redemp- 

tion necessary. 

49.  Devisees  of  mortgaged  premises  necessary. 
.50.     Legatees  and  annuitants  necessary. 

51.  Execufors  and  administrators  generally  not  necessary. 

52.  Trustees   holding  any  interest  of  whatever   kind   in 

mortgaged  premises  for  benej&ciaries  necessary. 

53.  Cestuis  que  Irnst  and  beneficiaries  necessary. 

54.  Remaindermen  and  reversioners  necessary. 

55.  Assignee    in    bankruptcy    or    by    voluntary    general 

assignment,  and  receiver  of  a  corporation,  necessary. 

56.  Infants,  lunatics,  idiots  and  habitual  drunkards  nec- 

essary parties. 

57.  Mortgage  executed  by  administrator  or  executor  to 

pay   decedent's   debts,   heirs   and   devisees   of  the 
decedent  necessary. 

58.  Corporations  necessary  parties  by  corporate  name. 

59.  Tenants  and  occupants  necessary. 

§  32.  Introductory. 

Most  text-writers  have  considered  the  subject  of 
parties  defendant  to  mortgage  foreclosures  under  the 
subdivisions  of  necessary  parties  and  proper  parties. 
Mr.  Jones  ^  has  defined  a  necessary  party  as  "  one  whose 
presence  before  the  court  is  indispensable  to  the  render- 

1  Jones,  §  1394. 


DEFINITION    OF    NECESSARY    AND    PROPER    PARTIES.        71 

ing  of  a  judgment  which  shall  have  any  effect  on  the 
property ;  without  whom  the  court  might  properly 
refuse  to  proceed,  because  its  decree  would  be  practi- 
cally nugatory."  This  definition,  however,  cannot  be 
considered  logical,  nor  in  accordance  with  the  decisions 
of  the  courts ;  for  at  present  no  one  can  be  said  to  be  a 
necessary  party  in  order  to  maintain  the  action,  nor  nec- 
essary in  the  sense  that  his  omission  would  defeat  the 
action  or  render  the  decree  absolutely  void.  The 
words  "  necessary  "  and  "  proper  "  are  used  with  much 
looseness,  inaccuracy  and  uncertainty  of  definition  in 
the  courts  of  our  various  states, — apparently  in  dis- 
regard of  the  fact  that  the  words  are  relative  -in  signifi- 
cation, and  that  they  should  be  used  as  descriptive  of 
parties,  only  with  reference  to  the  purposes  for  which 
the  parties  ^are  made  defendants  to  the  foreclosure. 
Under  the  above  definition  neither  an  owner  of  a  part 
or  of  the  whole  of  an  equity  of  redemption,  nor  a 
subsequent  lienor,  nor  any  other  person  interested  in 
the  subject-matter  of  the  action,  can  be  called  a  neces- 
sary party. 

To  make  a  logical  analysis  of  the  subject  of  parties 
defendant  to  foreclosures,  it  will  be  necessary  to  divide 
the  subject  according  to  the  purposes  for  which  the 
parties  are  brought  into  the  action.  This  part  of  the 
work  will  be  given  to  the  consideration  of  parties  who 
are  necessary  defendants  for  the  purpose  of  extinguish- 
ing or  of  cutting  off  the  entire  equity  of  redemption, 
and  the  interests  of  all  persons  who  claim  under  the 
owner  of  the  equity  by  subsequent  mortgages,  judg- 
ments or  otherwise, — that  is,  of  parties  who  are  neces- 
sary in  order  to  exhaust  every  remedy  against  the  land 


72  PARTIES    TO    MORTGAGE    FORECLOSURES. 

for  the  collection  of  the  mortgage  debt,  and  in  order  to 
produce  a  perfect  title  at  the  sale,  or  such  a  title  as  the 
courts  "will  compel  a  bidder  to  accept.  The  word 
"  necessary  "  will  be  used  throughout  the  work  in  this 
sense  alone;  the  word  "proper"  cannot  enter  into  the 
analysis,  for  it  is  too  uncertain  in  meaning,  and  conveys  the 
idea  that  there  may  be  an  option  on  the  part  of  the  plaintiff 
as  to  whether  he  will  bring  a  party  into  the  action  or  not. 
For  convenience  of  treatment  and  to  make  a  logical 
division  of  this  part  of  the  work,  parties  defendant  will  be 
considered  under  the  heads  of  Owners  of  the  Fee  Title,  and 
Subsequent  Mortgagees  and  Lienors.  In  this  chapter 
exclusive  ,  attention  will  be  given  to  parties  who  own 
the  equity  of  redemption  in  the  mortgaged  premises,  or 
who  have  any  interest  in  the  quality  or  the  quantity  of 
the  title.  In  the  second  chapter,  attention  will  be  given 
to  parties  holding  liens  and  incumbrances  upon  the 
mortgaged  premises  which  accrued  subsequent  to  the  exe- 
cution and  delivery  of  the  mortgage  under  foreclosure. 

§  33.  General  principles. 

Many  states  have  now  codified  the  general  equitable 
principle,  that  any  person  iway  be  made  a  defendant  to 
an  action  who  has  or  claims  to  have  an  interest  in  the 
controversy  adverse  to  the  plaintiff,  or  avIio  is  a  neces- 
sary party  to  a  complete  determination  or  settle- 
ment of  the  questions  involved  therein.^  Applying 
this  principle  to  foreclosures,  it  ma}^  be  said  that  any 
person  who  is  interested  in  any  Avay  in  the  mort- 
gaged premises,  or  who  has  an  interest  in  the  mortgage 

1  New  York  Code,  g  447  ;  Pomeroy's  Remedies,  §  271.  See 
§§  3  and  4,  cmte. 


GENERAL    PRINCIPLES  ;    MORTGAGaR   NECESSARY.  73 

debt  adverse  to  that  of  the  plaintiff,  may  be  made 
a  defendant  to  the  action.  Thus  thet^owner  of  any 
quantity  or  quality  of  estate  in  the  premises,  even  in 
the  remotest  degree  or  of  the  most  trifling  value,  be- 
comes as  necessary  a  partj'  defendant  to  perfect  the 
title  as  the  sole  owner  of  the  entire  equity  of  redemp- 
tion. The  holder  of  a  lien  by  mortgage,  judgment  or 
any  co^^itingent  equity  is  also  generally  a  necessary 
party.  The  primarj^  object  of  the  suit  is  to  divest  the 
title,  which  existed  in  the  mortgagor  at  the  instant  of 
the  delivery  of  the  mortgage,  of  every  interest  which 
he  or  those  claiming  under  him  might  possibly  have  in 
it.  If  any  such  party  is  omitted,  he  stands,  of  course, 
unaffected  by  the  action,  and  the  decree  produced  will 
be  defective.  It  matters  not  how  valueless  or  remote 
any  interest  may  be ;  it  is  of  the  utmost  importance 
that  it  be  brought  within  the  jurisdiction  of  the  court, 
so  that  it  may  be  extinguished.  The  omitted  party  has 
moreover  a  right  to  redeem,  and  may  thus  put  a  pur- 
chaser of  a  defective  title  to  endless  trouble  and  expense 
in  defending  an  estate  which  should  have  been  perfected 
in  the  original  action. 

§  34.  Mortgagor  still  owning  the   equity   of  redemption 

necessary. 

If  the  mortgagor  continues  to  own  the  equity  of 
redemption,  he  is  for  all  purposes  a  necessary  party  to 
an  action  to  foreclose  a  mortgage  ;^  if  he  has  not  in- 

1  Kay  V.  Whittaker,  44  N.  Y.  565,  572  (1871);  Raynor  v. 
Selmes,  52  id.  579  (1873),  reversitig  7  Laii  •.  440  ;  Grriswold  v.  Fow- 
ler, 6  AV)b.  (N.  Y.)  113  (1857) ;  Reed  v.  Marble,  10  Paige  (N.  Y.), 
409  (1843);  Lane  v.  Er.skiiie,  13  111.  501,  503  (1851),  authorities 
collated  by  Treat,  Cir.  J.;  tblhnved  in  Harvey's  Adm's  v.  Thorn- 


74  PARTIES    TO    MORTGAGE    FORECLOSURES. 

cumbered  the  property,  lie  is  the  sole  necessary  defendant, 
and  the  simplest  possible  case  of  foreclosure  exists.  "  There 
is  no  doubt  that  the  owner  of  the  equity  of  redemption  is 
a  necessary  party  to  a  suit  for  the  foreclosure  of  a  mort- 
gage. The  mere  statement  of  this  proposition  is  suf- 
ficient, to  show  its  correctness,  without  the  citation  of 
any  authorities  in  its  support.  The  action  is  brought 
for  the  express  purpose  of  foreclosing  the  equitable 
estate  and  right  to  redeem  remaining  against  the 
mortgage,  and  of  transferring  to  the  purchaser  at  a  sale 
by  virtue  of  the  decree,  a  complete  legal  title  to  the 
mortgaged  premises.  The  very  object  of  the  proceed- 
ing would,  therefore,  be  completely  defeated  if  the  owner 
of  the  equity  of  redemption  were  not  a  party.  No  title 
could  be  made  that  would  not  be  defeasible  by  the  per- 
son in  whom  this  equity  of  redeeming  the  mortgage 
remained,  not  barred  or  destroyed."^  If  there  are 
two  or  more  mortgagors,  all  are  necessary  defendants  ; 
one  cannot  represent  the  others."-  A  person  who  has 
signed   a  note,  to   which    another    person    executes    a 

ton,  14  id.  217  (1852);  Hughes  v.  Pattejsou,  23  La.  Ann.  679 
(1871).  For  the  English  authorities,  see  Fisher,  §  298;  Fell  v. 
Brown.  2  Bro.  C.  C.  276(1787);  Palk  v.  Clinton,  12  Ves.  48 
(1806) ;  Thomson  and  Baskeiville  Case,  3  Rep.  in  Ch.  215  (1688). 
For  a  mortgage  of  a  life  estate,  see  Hunter  v.  Macklew,  5  Hare, 
238  (1846)  ;  Coote  App.  576.     See  §  38,  post,  and  notes. 

1  Hall  V.  Nelson,  23  Barb.  (N.  Y.)  90  (1856):  S.  C,  14  How. 
(N.  Y.)  32,  per  Emott,  J.  :  Watson  v.  Spence,  20  Wend.  (N.  Y.)  260 
(1838),  per  Cowan,  J.  Buckner  v.  Sessions,  27  Ark.  219  (1871) ; 
Cox  V.  Vickeis,  35  Ind.  27  (1870)  ;  Lenox  v.  Reed,  12  Kan.  223, 
228  (1873);  Champlin  v.  Foster,  7  B.  Mon.  (Kj.)  105  (lb46).  In 
Louisiana  a  curator  is  a})pointed  by  the  court  to  represent  the 
mortgagor,  if  he  is  a  non-resident  or  hides  himself.  Lasere  v. 
Roch'ereau,  21  La.  Ann.  205  (1869). 

-  Stucker  v.  Stucker,  3  J.  J.  Mar.  (Ky.)  301  (1830),  per  Robert- 
son, C.  J.     See  §  36,  post,  on  joint  mortgagors. 


MORTGAGOR    A    NECESSARY    DEFENDANT.  75 

mortgage  as  collateral  security,  is  not  a  necessary  party 
to  a  foreclosure,  as  he  has  no  interest  in  the  land ;'  he 
can  be  made  a  defeudant,  however,  if  a  judgment  for 
deficiency  is  sought  against  him. 

If  the  mortgagor  has  conveyed  the  premises  by  an 
instrument  which  remains  unrecorded,  he  is  still  a 
necessary  part}',  as  the  record  continues  to  show  the 
title  in  him ;-  it  would  be  unsafe  at  least  to  omit  such 
a  morto-agor.  It  is  believed  that  the  safest  and  se- 
curest  practice  is,  always  to  make  the  mortgagor  a 
party,  if  he  can  be  easily  served  with  the  summons;^ 
If  the  mortgagor  has  contracted  to  sell  and  convey  the 
premises,  he  remains  a  necessary  party  in  order  to  cut 
off  the  entire  equity  of  redemption,  even  though  the 
contract  be  under  seal  and  recorded."^ 

In  strict''  foreclosures,  and  in  foreclosures  by  adver- 
tisement under  statute  also,  the  mortgagor,  or  those 
succeeding  to  his  interests,  are  necessary  parties  defend- 
ant f  the  statute  must  be  strictly  followed  in  the  service 
of  the  required  notice  upon  the  necessary  parties/ 

1  Delarid  v,  Meislion,  7  Clarke  (Iowa),  70  (1858). 

-  Kipp  V.  Brandt,  49  How.  (N.  Y.)  358  (1875) ;  Hall  v.  Nelson, 
23  Barb.  (N.  Y.)  88  (1856) ;  Ostrom  v.  McCann,  21  How.  (N.  Y.) 
431  (1860).     See  the  New  York  Code,  §§  1670,  1671,  and  §  42,  post. 

■^  See  §  39,  post,  on  intermediate  purchasers,  and  §  92,  post,  on 
the  liability  of  a  mortgagor  for  a  judgment  of  deficiency. 

4  Cruoke  v.  O'Higgins,  14  How".  (N.  Y.)  154  (1857).  See  §  36, 
post. 

•>  Hornby  v.  Cramer,  12  How.  (N.  Y.)  490  (1855). 

«  Robinson  v.  Ryan,  25  N.  Y.  320  (1862);  Van  Slvke  v. 
Shelden,  9  Barb.  (N.  Y.)  278  (1850) ;  Stanton  v.  Kline,  16  id.  9 
(1852) ;  Cole  v.  Mollitt,  20  id.  18  (1854). 

7  Mowry  v.  Sanborn,  65  N.  Y.  581  (1875). 


76  PARTIES    TO    MORTGAGE    FORECLOSURES. 

§  35.  Mortgagor  no  longer  owning  the  equity  of  redemp- 
tion not  necessary. 

A  mortgagor  who  has  made  an  absokite  conveyance  of 
all  his  interest  in  mortgaged  premises  is  not  a  necessary 
porty  to  a  foreclosure  for  the  purposes  of  perfecting  the 
title  and  of  exhausting  all  remedies  against  the  land  for 
the  collection  of  the  debt;'  neither  are  the  assignees  in 
bankruptcy,  nor  the  heirs,  nor  the  personal  representatives 
of  such  a  mortgagor  necessary  parties.-  But  a  mortgagor 
who  has  sold  his  equity  of  redemption  by  a  warranty 
deed  may  be  made  a  party  defendant  on  his  own  appli- 
cation ;  so  also  if  he  has  any  other  interest  in  the  fore- 
closure, but  if  he  fails  to  show  a  real  interest  in  the 

1  Drury  v.  Clark,  16  How.  (N.  Y.)  428  (1857) ;  Crooke  v.  O'Hig- 
gins,  14  id.  154  (1857) ;  Van  Nest  v.  Latson,  19  Barb.  (N.  Y.)  604, 
608  (1855) ;  Daly  v.  Burchell,  13  Abb.  N.  W.  (N.  Y.)  268  (1872) ; 
Griswold  v.  Fowler,  6  Abb.  (N.  Y.)  118  (1857);  Trustees  v. 
Yates,  1  Hoff.  Ch.  (N.  Y.)  142  (1839) ;  Whitnev  v.  M'Kinney, 
7  Johns.  Ch.  (N.  Y.)  144  (1823) ;  Cherry  v.  Monro,  2  Barb. 
Ch.  (N.  Y.)  627  (1848);  Bi^elow  v.  Bush.  6  Paige  (N.  Y.),  343 
(1837);  Rhodes  v.  Evans,  Clarke  Ch.  (N.  Y.)  168  (1840);  Root  v. 
Wright,  21  Hun  (N.  Y.),  344,  348  (1880),  reversed  in  part,  but 
not  as  to  this  point,  in  84  N.  Y.  72  (1881);  Boggs  v.  Fowler,  16 
Cal.  559  (1860) ;  Horn  v.  Jones,  28  id.  194  (1865) ;  Swift  v.  Edson 
5  Conn.  534  (1825) ;  Johnson  v.  Monell,  13  Iowa,  300,  303  (1862) 
Shaw  V.  Hoadley,  8  Blackf.  (Ind.)  165  (1846) ;  Burkham  v.  Beaver 
17  Ind.  367  (1861) ;  Stevens  v.  Campbell,  21  id.  471  (1863) ;  Jones 
v.  Lapham,  15  Kan.  540  (1875) ;  True  v.  Haley,  24  Me.  297  (1844) 
Bailey  v.  Myrick,  36  id.  50  (1853);  Buchanan  v.  Monroe,  22 
Tex.  537  (1858);  Miner  v.  Smith,  53  Vt.  551  (1881):  Dela- 
plaine  v.  Lewis.  19  Wis.  476  (1865) ;  Andrews  v.  Stelle,  22  N.  J. 
Eq.  478  (1871) ;  Wright  v.  Eaves,  10  Rich.  Eq.  (S.  C.)  582  (1858). 
In  Crenshaw  v.  Thackston,  14  S.  C.  437  (1881),  such  a  mortgagor 
was  held  a  necessary  party.  Fisher,  §  305 ;  Brown  v.  Stead,  5 
Sim.  (Eng.)  535  (1832). 

-^  Bryce  v.  Bowers,  11  Rich.  Eq.  (S.  C.)  41  (1859) ;  Fisher,  §  306. 
For  the  English  cases  see  Kerrick  v.  Saffery,  7  Sim.  317  (1835) ; 
Lloyd  V.  Lander,  5  Madd.  282  (1821) ;  Collins  v.  Shirley,  1  R.  & 
M.  638  (1830) ;  Rochfort  v.  Battersby,  14  Jur.  229  (1849). 


WHEN    MORTGAGOR    IS    NOT    A    NECESSARY    PARTY.        77 

action  when  admitted,  the  court  will  subsequently 
dismiss  him  from  it.^  The  decisions  are  clear  and 
uniform  in  sustaining  these  propositions,  and  it  is  only 
in  exceptional  cases  and  for  special  reasons  that  a 
court  will  require  a  mortgagor,  who  has  parted  with 
his  entire  interest  in  the  property,  to  be  brought  in 
if  the  plaintiff  has  omitted  him."'  The  mortgaged  prem- 
ises are  always  the  primary  fund  for  the  payment  of  the 
debt,  and  a  grantee  has  no  right  to  object  if  the 
mortgagor  is  not  made  a  party  to  the  bill  of  foreclosure.^ 
Neither  will  the  objection  of  any  other  defendant  be 
considered,  unless  he  shows  that  his  interests  will  be 
prejudiced  by  the  omission  of  the  mortgagor.^  It  is 
only  when  the  party  against  whom  the  mortgagee  asks 
a  personal  judgment  for  deficiency  is  a  mere  surety  of 
the  mortgagor,  that  he  can  insist  that  the  latter  be 
made  a  defendant  and  that  the  plaintiff's  remedy  against 
him  for  the  deficiency  in  the  property  be  exhausted  before 
resorting  to  the  surety,'^  If  there  are  equities  or  dis- 
putes between  the  grantee  and  the  mortgagor,  they  must 
be  settled  in  another  suit.*^ 

It  is  nearly  always  desirable,  however,  to  make  the 

1  Gifford  V.  Workman,  15  Iowa,  o4  (I860);  Houston  v.  String- 
ham,  21  id.  lifj  (186(3). 

^  Minis  V.  Minis,  85  Ala.  28  (1850);  Murray  v.  Catlett,  4 
Green  (Iowa).  108  (1858);  Swift  v.  Edsou,  5  Conn.  584(1825); 
Shaw  V.  Hoadley,  8  Blackf.  (hid.)  165  (18-46) ;  McGuttev  v.  Fin- 
ley,  20  Ohio,  474  (1851);  Lane  v.  Erskine,  18  111.  501  (1851); 
Vreeland  v.  Loubat,  1  Green  (N.  J.  Eq.),  104,  405  (1858) ;  1  Powell 
on  Mortgages,  405,  and  note  2. 

'■'  Bii^elow  V.  Bush,  6  Paige  (N.  Y.),  848,  846  (1887). 

4  Williams  V.  Meeker,  29  Iowa,  292,  294  (187U). 

■'  Drury  v.  Clark.  16  How.  (K.  Y)  424,  481  (1857);  Bigelow  v. 
Bush,  6  Paige  (N.  Y.),  843  (1887). 

«  Van  Nest  v.  Latson,  19  Barb.  (N.  Y.)  604  (1855). 


78  PARTIES    TO    MORTGAGE    FORECLOSURES. 

mortgagor  a  part}'  clelenclant,  even  if  he  does  not  continue 
to  hold  the  equity  of  redemption ;  it  is  against  him  espe- 
cially that  a  judgment  for  deficiency  is  sought  on  his 
hond  or  note  accompanying  the  mortgage.^  There  may 
be,  moreover,  latent  or  secret  interests  to  be  cut  off,  which 
he  continues  to  hold  in  the  property  :  creditors  may 
attaci^  his  conveyance  as  fraudulent ;  or  his  conveyance, 
absolute  on  its  face,  may  be  intended  only  as  a  collateral 
security.-  Thus,  in  an  action  to  foreclose  a  mortgage 
and  to  correct  the  description  of  the  premises,  both  the 
mortgagor  and  his  grantee  have  been  deemed  necessary 
defendants  ;''  and  the  grantor  of  a  trust  deed  has  been 
held  a  necessary  defendant  for  similar  reasons.*  When 
the  plaintiff  has  no  knowledge  or  suspicion  of  such 
equities,  or  fraudulent  conveyance  or  collateral  security 
deeds,  he  will  generally  be  bound  only  by  what  appears 
on  record. 

§  36.  Mortgagor  still  holding  only  a  divided  or  undivided 
part  of  the  premises,  or  being  a  tenant  in  coninion 
by  descent  or  grant,  a  necessary  party. 

As  long  as  a  mortgagor  continues  to  own  any  part  of 
the  title  which  he  njortgages,  he  is  just  as  necessary  a 
party  to  a  foreclosure  as  he  would  be  if  he  continued  to 
own  the  whole  title."'     A  mortgagee's  joining  Avith  his 

1  Root,  V.  Wiiiiht.  21  IIiiu  (N.  y.),  344,  848;  aff"d  84  N.  Y. 
72  (1881);  Stevens  v.  Campbell,  21  lud.  471  (1863);  Miller  v. 
Thompson,  34  Mich.  10  (187(3).     See  g  92,  post. 

-  Lloyd  V.  Lander,  5  Madd.  (Euo-.)  282  (1821) ;  Kina'  v.  Mar- 
tin, 2  Ves.  Jnn.  (Eng.)  641  (1795).  "This  point  is  well  illustrated 
by  the  litigation  in  Griswold  v.  Fowler,  6  Abb.  (N.  Y.)  113 
(1857);  Crooke  v.  O'Hijs^-ins,  14  How.  (X.  Y.)  154  (1857). 

3  Sickman  v.  Wood,  69  III.  329  (1873). 

^  Marsh  v.  Green,  79  111.  385  (1875). 

5  See  t^  34,  ante.  Spiller  v.  Spiller,  1  Havward  (X.  .C).  482 
(1797);  Taylor  v.  Porter,  7  Mass.  355  (1811);"  Jones,  §  1409. 


MORTGAGOR  OWNING  ONLY  PART  OF  PREMISES.     79 

mortgagor  in  a  deed  of  an  undivided  part  of  the  mort- 
gaged jDremises,  for  the  purpose  of  releasing  his  mort- 
gage debt  on  tliat  part,  has  been  held  inoperative  as  a 
release.  The  mortgage  lien  still  continued  on  the  entire 
premises/  A  mortgage  executed  by  a  tenant  in  com- 
mon upon  his  undivided  interest  in  real  property  does 
not  affect  the  rights  of  his  co-tenants.-  Such  a  mortgage 
cannot  be  enforced  against  the  mortgagor's  divided  part 
of  the  premises  until  commissioners  in  partition  have 
made  an  actual  division  of  the  lands  and  a  decree  has 
been  entered  adjudging  the  mortgage  a  lien  upon  his  part 
alone.^  After  a  mortgage  has  Ijeen  adjudged  by  a  decree 
in  partition  to  be  a  lien  upon  a  divided  instead  of  an  undi- 
vided part  of  the  premises,  the  mortgagee  will  be  con- 
fined for  his  remedy  exclusivel}^  to  the  share  set  off  to 
his  mortgagor.'^  Thus,  in  an  action  to  foreclo.se  a  land 
contract  or  "  title  bond  "  of  an  undivided  half  of  certain 
premises,  the  vendee  of  the  remaining  undivided  half 
was  allowed  to  file  a  cross  bill  for  partition,  and  to  have 
s,  decree  entered  that  the  divided  half  set  apart  to  him 
be  held  free  and  clear  of  the  lien  of  the  title  bond.'' 
It  has  been  intimated  in  some  cases"  that  a  purchaser 

1  Toirev  v.  Cook,  116  Mass.  W.l  (1874).  per  Gray,  Ch.  J. 

2  Marks  v.  Sewall,  120  Mass.  174  (187(3). 

■'  Keid  V.  Gardner,  6.5  N.  Y.  578  (1875):  Coltou  v.  8;mitli,  11 
Pick.  (Mass.)  311  (1831) ;  Ricli  v.  Lord,  18  id.  322  (1836) ;  Stewart 
V.  Allegheiiv  National  Bank,  101  Peun.  342  (1882)  :  Hatch  v. 
Kimball,  14  Me.  91  (1836). 

*  Kline  V.  McGuckin,  24  N.  J.  Eq.  411  (1874). 

■'  Hammond  v.  Perrv,  38  Iowa,  217  (1874).  8)ee  also  Looniis  v. 
Riley,  24  111.  307  (1860) ;  Williams  v.  Perry,  20  Ind.  437  (1863); 
Cornell  v.  Prescott,  2  Barb.  (N.  Y.)  16  (1847). 

*•  Donsi-lass  v.  Bishop,  27  Iowa,  214,  216  (1869);  Mims  v.  Mims, 
35  Ala.  23  (1859);  Hull  v.  Ly<m,  27  Mo.  570  (1858);  Crenshaw 
V.  Thackston,  14  8.  C.  437  (1881);  Frost  v.  Frost,  3  Saudf.  Ch. 
(N.  Y.)  188  (1846)  ;  Cholmondelev  v.  Lord  Clinton.  2  Jac.  &  W. 


80  PARTIES    TO    MORTGAGE    FORECLOSURES. 

of  an  undivided  interest  in  mortgaged  premises 
would  not  be  an  absolutely  necessary  party ;  but  it  is 
nowhere  questioned  that  a  mortgagor  still  owning  the 
remaining  undivided  interest  is  always  a  necessary 
defendant.  The  above  intimation  is  not  to  be  relied 
upon  in  New  York  and  in  those  states  where  foreclosure 
is  generally  accomplished  by  an  equitable  action.  An 
owner  of  an  undivided  interest  in  lands,  prior  to  the  exe- 
cution of  a  mortgage  by  his  co-tenant,  is  not  a  necessary 
party  to  a  foreclosure.  If  he  is  made  a  defendant,  he  can 
have  the  bill  dismissed  as  to  himself;  even  if  the  action 
proceeds  to  a  decree  and  sale,  the  judgment  will  not  be 
binding  upon  him.  One  of  four  joint  tenants  executed 
a  mortgage  purporting  to  convey  the  whole  estate ;  on 
foreclosure  the  remaining  three  were  held  not  necessary 
parties,  and  even  if  they  had  been  made  parties,  their 
rights  would  not  have  been  concluded  by  the  decree.^ 
Where  tenants  in  common  jointly,  or  jointly  and 
severally,  mortgage  property,  a  foreclosure  cannot  be 
maintained  against  either  of  them  separately  to  collect 
a  moiety  of  the  debt ;  the  action  must  be  against  both 
and  those  claiming  under  them.  Neither  can  either  of 
them  compel  the  mortgagee  to  receive  half  of  the  debt,- 
and  thereby  relieve  him,  and  to  proceed  against  his  co- 
tenant  for  the  collection  of  the  other  half  The  in- 
terests of  tenants  in  common  in  such  cases  must  always 
be  sold  toiiether,  no  matter  how  numerous  the  owners 
may  be.-  If  the  mortgaged  premises  have  been  divided 
and  conveyed  in  separate  parcels,  as  frequently  happens, 

(Eng.)  134  (1820) ;  Palk  v.  Clinton,  12  Ves.  (Eng.)  48,  59  (1806)  ; 
Jones,  g  1405. 

1  Stephen  v.  Beall,  22  Wall.  (U.  S.)  328  (1874). 

2  Frost  V.  Frost,  3  Saiidf.  Ch.  (N.  Y.)  188  (1846). 


JOINT    MORTGAGORS.  81 

all  the  owners  of  the  several  parcels  must  be  made  de- 
fendants to  the  foreclosure  in  order  to  render  a  perfect 
title.^ 

It  has  been  held  that  neither  the  heirs  nor  the  per- 
sonal representatives  of  a  deceased  joint  mortgngor,  or 
owner  of  the  equity  of  redemption,  are  necessary  parties 
to  a  foreclosure.  This  rule  is  undoubtedly  based  upon 
the  common-law  doctrine  of  survivorship  in  cases  of 
joint  tenancy.  But  as  it  is  frequently  an  open  question 
whether  a  title  is  held  by  persons  as  joint  tenants  or 
tenants  in  common,  it  is  the  safest  practice  to  make  the 
heirs  of  the  deceased  owner  parties  to  the  foreclosure. 
In  New  York  the  law  was  settled  in  Berths  v,  Nunan^ 
that  under  a  conveyance  to  a  husband  and  wife  jointly, 
they  take  as  tenants  by  the  entirety,  and  upon  the  death 
of  either,  the  survivor  takes  the  whole  estate ;  in  such 
a  case  it  would  not  be  necessary  to  bring  the  heirs 
of  the  deceased  joint  owner  into  the  action. 

§  37.  Mortgagor  still  holding  any  kind   of  an  equitable, 
contingent  or  latent  interest  generally  necessary. 

It  may  be  generally  stated  that,  as  long  as  the  mort- 
*gagor  continues  to  own  or  hold  any  interest  of  an  equi- 
table nature  in  the  mortgaged  premises,  he  is  a  necessary 
defendant  to  a  foreclosure ;  for  the  entire  equity  of  re 
demption  cannot  be  cut  off  or  foreclosed  as  long  as  such 
interest  is   outstanding   and  unaffected  by   the   action.^ 

1  Palk  V.  Clinton,  12  Ves.  (Eiicr.)58,  59  (1806);  Peto  v.  Ham- 
moii:|,  29  Beav.  (Eng.)  91  (1860)  ;"lreson  v.  Demi,  2  Cox  (Eng.), 
425  (1796) ;   Wiley  v.  Pirison,  28  Tex.  486  (1859). 

-  92  N.Y.  152  (1883),  j!;ier  Earl,  J.,  reviewing  Meeker  v.  Wright, 
76  id.  262  (1879),  and  in  substance  overriilini^  it. 

3  Morgan  v.  Magoffin,  2  Bibb  (Ky.),  895  (1811);  Jones,  §  1403. 

6 


82  PARTIES    TO    MORTGAGE    FORECLOSURES. 

Such  interests  may  be  as  various  and  different  as  the 
cases  in  which  questions  affecting  them  arise.  It  is  only 
from  an  examination  of  numerous  special  cases  that  the 
proposition  of  this  section  is  advanced  as  a  general  rule. 

The  sale  of  a  mortgagor's  interest  under  an  execution 
may  do  away  with  the  necessity  of  making  the  mort- 
gagor a  party  to  a  foreclosure  after  the  deliver}^  of  the 
sheriff's  deed  and  the  expiration  of  the  time  limited 
for  redemption,  as  such  a  sheriff's  sale  passes  the  entire 
equity  of  redemption  remaining  in  the  mortgagor  to 
the  purchaser  as  effectually  as  a  deed  would.  But  dur- 
ing the  period  of  redemption  the  mortgagor  is  an 
indispensable  party  for  the  purposes  stated  in  this 
chapter.^  It  has  been  said  by  Chancellor  Kent  -  that 
"  he  has  an  existing  ri^ht  of  which  he  could  not  be 
divested  within  the  year  by  the  sheriff" 's  sale,  and  could 
only  be  in  the  foreclosure  action  by  making  him  a 
party." 

It  seems  that  a  purchaser  at  a  sheriff's  sale  under  an 
execution  is  also  a  necessary  party  from  the  time  of  his 
purchase.'  But  where  the  execution  sale  is  held  pending 
a  foreclosure,  the  plaintiff  is  not  bound  to  bring  the  pur- 
chaser into  the  action  bv  a  supplemental  bill ;  the  pur- 
chaser must  intervene  on  his  own  application  to  the 
court  if  he  wishes  to  be  heard.^  It  has  been  held  that 
*'  a  sale  by  a  sheriff"  gives  the  purchaser,  under  the  cer- 

1  New  York  Code,  §  1440 :  Minis  v.  Minis,  85  Ala.  28  (1859). 

-  Hal  lock  V.  Hniith,  4  Johns.  Cli.  (N.  Y.)  649  (LS-2()).  The 
quotation  is  modified  from  the  orificinal  to  read  with  tlie  text. 

^  New  York  Code,  §§  1440,  144f,  1448 ;  Bviiii^^ton  v.  Walsh,  11 
Iowa,  27  (1860). 

■^  Bennett  v.  Calhoun  Association,  9  Rich.  Eq.  (H.  C.)  163  (1857). 
See  §  40,  posi,  on  purchasers  pendente  lite. 


PURCHASER    AT    SHERIFF'S    EXECUTION    SALE.  83 

tificate,  an  inchoate  right  to  the  land,  if  not  an  interest 
in  the  land  itself;  and  it  is  such  a  right  as  will  ripen 
into  a  title,  unless  the  property  be  redeemed  from  him. 
In  this  case  the  sale  and  purchase  was  anterior  to  the 
filing  of  the  bill  of  foreclosure,  and  though  tlie  pur- 
chaser did  not  obtain  a  deed  from  the  sheriff  until  after 
the  bill  in  this  case  and  a  notice  of  Us  pendens  were  filed, 
yet  he  is  considered  something  more  than  a  purchaser 
pendente  lite.  He  was  a  purchaser  before,  though  his 
title  did  not  become  consummated  until  afterward  ;  and 
by  his  purchase  he  acquired  such  a  right  and  interest 
in  the  land  as  entitled  him  to  be  made  a  party  to  the 
foreclosure  suit, —  and  not  having  been  made  a  party,  he 
is  not  foreclosed  of  his  equity  of  redemption.  The  pur- 
chaser at  the  foreclosure  sale  does  not  get  an  absolute 
title  as  against  the  purchaser  at  the  execution  sale."^ 
At  the  time  of  this  decision,  too,  there  was  no  law  requiring 
a  sheriff's  certificate  to  be  recorded  in  the  county  clerk's 
office,  and  the  plaintiff  could  have  no  notice  of  such 
certificate,  as  he  now  can,  without  examining  the  books 
in  the  sheriff's  office.  From  these  two  cases,  which  are 
unquestioned  as  good  law,  it  appears  that  both  the 
owner  of  the  equity  of  redemption  and  the  pur- 
chaser- at  an  execution  sale  are  absolutely  necessary 
parties  during  the  period  of  redemption  following  the 
execution  sale,  and  one  or  the  other  of  them  will  con- 


1  Insurance  Co.  v.  Bailev,  3  Edw.  Ch.  (N.  Y.)  417  (1840); 
strongly  in  point  to  the  contrary,  Woods  v.  Love,  "27  Mich.  308 
(1873). 

-  Seemingly  contra,  Woods  v.  Love,  f<ii/'ra,  liolding  that  the 
purchaser  at  an  execution  sale  is  not  a  iiucessary  defendant,  even 
though  he  may  have  filed  his  sheriff's  certificate  in  the  register's 
office. 


84  PARTIES    TO    MORTGAGE    FORECLOSURES. 

tinue  necessary,  according  as  the  property  is  redeemed 
or  not.^ 

The  mortgagor  or  owner  of  the  equity  of  redemption 
also  continues  a  necessary  party,  even  though  he  may 
have  entered  into  a  land  contract  or  a  bindins;  acrree- 
ment  to  convey  the  property.  In  such  a  case  a  mort- 
gagor holds  the  equit;ible  relation  of  mortgagee  to  the 
party  agreeing  to  purchase,  and  can  foreclose  his 
land  contract.  He  certainly  has  such  an  equitable  in- 
terest in  the  property,  that  the  title  produced  by  fore- 
closure would  not  be  perfect  if  he  were  omitted  as  a 
party  defendant  in  the  action  -  It  is  believed  that  the 
person  agreeing  to  purchase  under  a  land  contract  is 
also  a  necessary  defendant,  for  the  reasons  stated  by  the 
vice-chancellor  in  the  above  opinion,  although  Crooke 
V.  0''H^o•Q•ins^''  would  seem  to  indicate  that  the  omission 
to  make  him  a  party  would  not  prevent  the  rendition 
of  a  valid  judgment  of  foreclosure. 

A  curious  case  is  reported  in  Weed  v.  Stevenson,^ 
^vhere  it  appeared  that  an  absolute  deed  was  executed 
to  a  grantee  wdio  executed  a  defeasance  to  a  person  other 
than  the  grantor,  and  both  were  recorded  as  a  mortgage ; 
in  an  action  to  foreclose,  the  grantor  was  omitted   as  a 

1  For  redeeniiuii"  creditors,  see  the  New  York  Code,  §§  1447, 
1449,  1451,  1452.  1458  et  seq. 

2  Crooke  v.  O'Hicrii-ins,  14  How.  (N.  Y.)  154  (1857).  In  Roddy 
V.  Elam,  12  and  Ib^liich.  L.  &  Eq.  (S.  C.)  343  (1866),  the  phiiii- 
tift"  was  allowed  to  amend  his  bill  so  as  to  bring  in  the  original 
vendor. 

^  /Supra  ;  Greither  v.  Alexander,  15  Iowa,  470  (1863).  In  Blair  & 
Co.  V.  Marsh,  Sid.  144  (1859),  the  owner  of  a  land  contract,  holding 
it  as  a  "title  bond,"  assigned  it  as  a  collateral  security  ;  on  fore- 
closure, both  the  assignor  and  the  assignee  were  made  parties. 

^  Clarke  Ch.  (N.  Y.)  166  (1840);  Griswold  v.  Fowler,  6  Abb. 
(N.  Y.)  113  (1857). 


MORTGAGOR    STILL    OWNING    EQUITABLE    INTERESTS.       85 

party.  Objection  was  raised  by  demurrer  that  he  was 
a  necessary  defendant.  The  court  ruled  that  the  grantor 
was  a  proper,  though  not  a  necessary,  -party ;  that  he 
might  safely  have  been  omitted,  but  that  if  the  plaintiff 
had  any  doubt  about  the  validity  of  his  conveyance, 
he  had  a  perfect  right  to  make  the  grantor  a  defendant 
to  set  such  doubt  at  rest. 

The  mortgagor  may  also  retain  an  equitable  interest 
in  the  jDremises,  and  thereby  remain  a  necessary  party, 
where  he  has  made  a  conveyance,  absolute  on  its  face, 
but  intended  only  as  a  collateral  security ;  or  where  he 
has  delivered  a  deed  in  escrow ;  or  where  the  deed  has 
been  executed,  but  remains  unrecorded  for  secret  pur- 
poses, and  the  plaintiff  has  no  knowledge  or  suspicion  of 
the  same  ;^  or  where  the  mortgagor  conveys  his  equity 
of  redemption  in  fraud  of  creditors,  and  his  conveyance 
is  attacked  or  threatened.  It  is  thus  seen  that  the  in- 
stances in  which  the  mortgagor  may  still  hold  an  equi- 
table interest  in  the  title  after  he  has  apparently  parted 
with  his  entire  ownership,  are  innumerable  and  ex- 
tremely various  in  character. 

§  38.  The  purchaser  and  owner  of  the  equity  of  redemp- 
tion by  grant  or  otherwise  from  the  mortgagor 
necessary. 

An  owner  or  holder  of  the  equity  of  redemption  by 
purchase  from  the  mortgagor  or  a  mesne  purchaser  is 
as  necessary  a  defendant  to  a  foreclosure  as  a  mortgagor 

^  Many  of  these  difficulties  may  now  be  obviated  by  filing  the 
statutory  Us  pendens.  New  York  Code,  §§  1670,  1671 ;  Kipp  v. 
Brandt,"49  How.  (N.  Y.)  358  (1875);  Ostrom  v.  McOann,  21  id. 
481  (1800).  See  §§  41  and  42,  ^jos^,  on  Us  penclerLs.  On  fraudulent 
transfers,  see  Adams  v.  Bradley,  12  Mich.  846  (1864). 


86  PARTIES    TO    MORTGAGE    FORECLOSURES. 

still   owning  the  mortgaged  premises.^     So,  also,  is  a 

1  Reed  v.  Marble,  10  Paige*  (N.  Y.),  409  (1843);  Williamson 
V.  Field,  2  «aiidf.  Cli.  (N.  Y.)  5:53  (1845);  Watson  v.  Upeuce,  20 
Wend.  (IS.  Y.)  260  (1838);  Hall  v.  Nelson,  14  How.  (N.  Y.)  32 
(1856):  8.  C,  23  Barb.  88;  Bnrnhani  v.  De  Bevorse.  8  How.  (N. 
Y^)  159  (1853) ;  Van  Slyke  v.  8heldeu,  9  Barb.  (N.  Y.)  278  (1850) ; 
8t.  John  V.  Bumpstead*  17  id.  100  (1852);  Kaynor  v.  Selnies,  52 
N.  Y\  579  (1873);  Miner  v.  Beekman,  50  id!  337,  344  (1872); 
Robinson  v.  Rvan,  25  id.  320  (1862);  Winslow  v.  Clark,  47  id. 
261  (1872).  In'Mickles  v.  Dillaye,  15  Hun  (N.  Y.),  296  (1878),  the 
foreclosure  was  bv  advertisement.  Merritt  v.  Phenix,  48  Ala.  87 
(1872):  Hall  v.Hii,yyins,  19id.200(1851);  Lnniiiirv.Bradv,  lOCal. 
265  (1858);  De  Leon  v.  Hi.i^niera,  15  id.  483^(1860);  Boggs  v. 
Fowler  &  Hargrave,  16  id.  559  (1860);  Goodenow  v.  Ewer,  16  id. 
461  (1860);  Hevman  v.  Lowell,  23  id.  106  (1863);  Carpentier  v. 
Williamson,  25  "id.  154  (1864) ;  Horn  v.  Jones,  28  id.  194  (1865) ; 
Skinner  v.  Buck,  29  id.  253  (1865);  Bludworth  v  Lake.  33  id. 
265  (1867):  Coker  v.  Smith,  63  Ga.  517  (1881);  Ohling  v. 
Luitjens,  32  111.  23  (1863) ;  Jeneson  v.  Jeneson,  m  id.  260  (1872) ; 
Mark  v.  Murphy,  76  Ind.  534  (1881) ;  Searle  v.  Whipperman,  79 
id.  424  (1881) ;  Lenox  v.  Reed,  12  Kan.  223,  228  (1873);  Bailey 
V.  Mvrick,  36  Me.  50  (1853) ;  Cooper  v.  Martin,  1  Dana  (Kv.),  25 
(1833) ;  Roney  v.  Bell,  9  id.  4  (18.39) ;  Nichols  v.  Randall,  5  Minn. 
304,  308  (1861);  Wolf  v.  Banning,  3  id.  202,  204  (1858);  Camp- 
bell V.  Bemis,  16  Gray  (Mass.),  485  (1860) ;  Koche  v.  Farnsworth, 
106  Mass.  509  (1871');  Learned  v.  Foster,  117  id.  365  (1875); 
Thayer  v.  Smith,  17  id.  429  (1821)  ;  Putnam  v.  Putnam,  4  Pick. 
(Mass.)  139  (1826);  Brundred  v.  Walker,  1  Beas.  Ch.  (N.  J.)  140 
(1858);  Rodg-ers  v.  Jones,  1  McCord  Ch.  (S.  C.)  221  (1826) ;  Du- 
rand  v.  Isaacks,  4  McCord  Law  (S.  C),  54  (1826);  Norton  v. 
Lewis,  3  Rich.  N.  S.  (S.  C.)  25  (1871-72);  Manufacturing  Co.  v. 
Price,  4  id.  338,  345  (1872) ;  Men^  v,  Honser,  13  Rich.  Eq.  (S.  C.) 
210,  220  (1867) ;  Buchanan  v.  Monroe,  22  Tex.  537  (1858) ;  Mor- 
row V.  Morgan,  48  id.  304  (1878) ;  Hodgson  v.  Treat,  7  Wis  263 
(1858);  Green  v.  Dixon,  9  id.  532  (1859);  Cord  v.  Hirsch.  17 
id.  403  (1863)  ;  Fisher,  gi?  299,  305  ;  Brown  v.  Stead,  5  Sim.  (En^r.) 
535  (1832) ;  Peto  v.  Hammond,  29  Beav.  (Eno-.)  91  (1860) ;  Manly 
V.  Beaufort,  1  Russ.  (Eng.)  349  (1826).  Contrary  to  the  above 
authoi'ities,  see  Sumner  v.  Coleman,  20  Ind.  486  (1863):  Cline  v. 
Inlow,  14  id.  419  (1860) ;  andSemple  v.  Lee,  13  Iowa,  304  (1862), 
holding  that  the  owner  of  .the  eqidty  is  not  a  necessary, 
but  only  a  proper,  party  ;  but  these  cases  have  been  overruled  by 
later  decisions  in  the  same  courts.  A  fraudulent  grantee  was  held  a 
necessary  party  in  Adams  v.  Bradley,  12  Mich.  346  (1864).  In 
the -foreclosure  of  a  mechanic's  lien,  the  owner  of  the  equity  was 
held  a  necessary  defendant.     Marvin  v.  Taylor,  27  Ind.  73  (1866). 


OWNER  OF  THE  EQUITY  BY  PURCHASE  OR  OTHERAVISE.        87 

purchaser  of  a  divided^  or  of  an  undivided"-  part  of  the 
mortgaged  premises  a  necessary  defendant,  and  if  not 
made  a  party,  he  will  have  the  right  to  redeem  his  part 
by  paying  a  proportional  part  of  the  mortgage  debt.^ 
The  purchaser  of  an  equity  of  redemption  from  an  assignee 
in  bankruptcy  is  a  necessary  defendant,  instead  of  the 
assignee  or  the  bankrupt/  In  the  foreclosure  of  a  mort- 
gage  containing  a  power  of  sale,  the  owner  of  the  equity 
is  entitled  to  due  service  of  a  notice,  and  a  bare  com- 
pliance with  the  terms  of  the  power  is  not  sufficient.^ 
But  where  the  foreclosure  is  conducted  by  scire  facias,  as 
it  may  be  in  Illinois  and  in  some  other  states,  the  mort- 
gagor or  his  personal  representatives  are  the  only  neces- 
sary parties ;  the  purchaser  is  not  even  a  proper  party.*'  In 
some  states  the  courts  have  held  the  owner  of  an  equity 
a  proper,  but  not  a  necessary,  party ;  but  these  courts 
evidently  mean  that  the  owner  is  not  a  necessary  defend- 
ant for  the  maintenance  of  the  action,  as  they  are  agreed 
that  his  rights  will  remain  unaffected  unless  he  is  brought 
into  the  action.  Under  the  meaning  given  to  the  word 
in  this  chapter,  they  are  indispensable  defendants,  and 
the  decisions  of  these  courts  in  fact  support  the  proposi- 
tion of  this  section.' 

1  Spiller  V.  Spiller,  1  Haywood  (N.  C),  482  (1797). 

^  Hee  Day  v.  Patterson,  IS  lud.  114  (1862),  where  there  were  a 
number  of  purchasers  and  all  were  held  necessary  parties.  See 
Sumner  V.  Coleman,  20  id.  486  (1863) ;  Bates  v.  Ruddick,  2  Clarke 
(Iowa),  423  (1856). 

^  Bates  V,  Ruddick,  supra;  Williams  v.  Beard,  1  Rich.  (S.  C.) 
309  (1870) ;  Lo^an  v.  Smith,  70  Ind.  598  (1880). 

^  Felder  v.  Murphy,  2  Rich.  Eq.  (S.  C.)  58  (1845). 

5  Drinan  v.  Nichols,  115  Mass.  353  (1874). 

c  Chickering  v.  Failes,  26  111.  507  (1861). 

■^  See  §  32,  ante.  Sumner  v.  Coleman,  20  ind.  486  (1863) ;  Cliue  v. 
Inlow,  14  id.  419  (1860) ;  Semple  v.  Lee,  13  Iowa,  304  (1862).     In 


88  PARTIES    TO    MORTGAGE    FORECLOSURES. 

The  cases  are  uniform  in  holding  that  a  purchaser  at  a 
foreclosure  sale  acquires  no  title  whatever  to  the  mort- 
gaged jD remises,  unless  the  owner  of  the  equity  of  re- 
demption is  made  a  party,  although  the  mortgagor  and 
the  incumbrancers  may  have  been  made  defendants. 
Such  a  purchaser  remains  a  stranger  to  the  title 
to  the  land,  and  the  sale  operates  only  as  an  equitable 
assignment  of  the  mortgage  to  hini,^  It  has  some- 
times been  intimated  that  such  a  sale  is  void,-  but 
the  current  of  authorities  agree  that  it  is  binding  upon 
the  parties  who  have  been  brought  into  the  action. 
No  suit  can  be  instituted  against  the  mortgagor  for  the 

Rose  V.  Swann,  56  111.  37  (1870),  the  foreclosure  of  a  laud  coutract 
was  sought;  subsequeut  purchasers  of  the  rights  of  the  vendee  were 
held  jyroper,  but  not  neca^sary,  parties.  In  Williams  v.  Terrell, 
54  Gra.  462  (1875),  an  owner  was  held  necessary  to  the  extent 
that  he  was  unaffected  by  the  decree  if  omitted,  and  mightredeem ; 
Georgia  cases  collated  and  reviewed.  iSee  Knowles  v.  Lawtou,  18 
Ga.  476  (1855),  holding  the  purchaser  unnecessary  where  the 
mortgagor  was  made  a  party  ;  and  May  v.  Rawson,  21  id.  461 
(1857),  holding  that  where  the  mortgagor  has  died,  it  is  suf- 
ficient to  make  the  purchaser  a  party.  See  Mevey's  Appeal,  4 
Penn,  St.  80  (1846),  holding  a  purchaser  not  indispensable  under 
the  acts  of  1705  and  1822,  but  unaffected  by  the  action  if  omitted ; 
citing  the  earlier  Pennsylvania  cases. 

1  Miner  v.  Beekman,  50  N.  Y.  337,  344  (1872) ;  Robinson  v. 
Ryan,  25  id.  320  (lb62) ;  Winslow  v.  Clark,  47  id.  261  (1872); 
Cutter  V.  Jones,  52  111.  84  (1869);  Kelgour  v.  Wood,  64  id.  345 
(1872) ;  Douglass  v.  Bishop,  27  Iowa,  214,  216  (1869);  Barrett  v. 
Blackmar,  47  id.  565,  571  (1877),  ^^er  Day,  Ch.  J.  In  point, 
Moore  v.  Cord,  14  Wis.  213  (1861). 

-  In  point,  Skinner  v.  Buck,  29  Cal.  253  (1865).  See  Boggs  v. 
Fowler  &  Hargrave,  16  id.  559  (1860),  holding  tliat  such  a  sale  is 
void,  and  that  no  title  passes  ;  Nat.  Fire  Ins.  Co.  v.  McKay,  1 
Sheldon  (N.  Y.),  138  (1867)  See  Reed  v.  Marble,  10  Paige  (N.  Y.), 
414  (1843) ;  Watson  v.  Spence,  20  Wend.  (N.  Y.)  260  (1838).  In 
Mickles  v.  Dillaye,  15  Hun  (X.  Y.),  296  (1878),  it  is  queried 
whether  a  foreclosure  by  advertisement,  in  which  no  notice  is 
served  on  the  owner  of  the  equity  of  redemption,  is  not  a  mere 
nullity  as  to  all  parties  to  the  proceeding. 


RESULT  OF  OMITTING  OWNER  OF  THE  EQUITY.  89 

payment  of  the  mortgage  debt  without  making  the 
grantee  of  the  equity  of  redemption  a  party  defendant,' 
The  owner  of  the  equity  of  redemption  is  not  affected 
at  all  by  a  decree  rendered  in  an  action  to  which  he 
is  not  made  a  party,  as  the  court  acquires  no  juris- 
diction of  him  f  the  decree  is  a  nullity  as  to  him,  and 
he  has  a  right  to  redeem,  or  to  enforce  such  other 
remedies  as  the  courts  of  the  different  states  may 
allow." 

The  principles  stated  above  are  equally  true, 
whether  the  owner  acquires  his  title  by  grant,  or 
through  a  sherifl^'s  sale  under  an  execution,  receiving 
a  deed  in  due  time,^  or  from  an  assignee  in  bankruptcy,"' 
or  by   descent    or   devise,"    or    otherwise.''     The    pur- 

1  Reed  v.  Marble,  10  Paige  (N.  Y.),  410,  414   (1848). 

-  Veach  v.  iSchaiip,  o  Clarke  (Iowa),  194  (1856) ;  Porter  v. 
Kilgore,  32  Iowa,  880  (1871);  Street  v.  Beal,  J  6  id.  68  (1864); 
Bradley  v.  Snyder,  14  111.  263  (1853);  Chickerino-  v.  Failes, 
26  id.  517  (1861);  Ohlin--  v.  Luitjens,  32  id.  23  (r868) ;  Hiird 
V.  Case,  32  id.  45  (1863) ;  Daulap  v.  Wilson,  32  id.  517  (1863); 
Cntter  v.  Jones,  52  id.  84  (1869);  Kelgour  v.  Wood,  64  id.  345 
(1872);  Childs  v.  Childs,  10  Ohio  St.  339  (1859).  In  point. 
Miner  v.  Beekman,  50  N.  Y.  3^7  (1872).  For  other  New  York 
cases,  see  the  first  note  to  this  section. 

'•^  Douglass  V.  Bishop,  27  Iowa,  214_,  216  (1869) :  Barrett  v. 
Blackmar,  47  id.  565,  571  (1877) ;  opinion  ?^er  Day,  Ch.  J.  See 
the  cases  in  the  preceding  note. 

*  Coster  V.  Clark,  3  Edw.  Ch.  (N.  Y.)  440  (1840);  Hallock  v. 
Smith,  4  Johns.  Ch.  (N.  Y".)  649  (1820) ;  Buck  v.  Sanders,  1  Dana 
(Ky.),  189  (1833) ;  Brooks  v.  Keister,  45  Iowa,  308  (1876) ;  Davis 
V.  Evans,  5  Iredell  (N.  C),  525  (1845);  Thorpe  v.  Ricks,  1 
Devereux  &  B.  Kq.  (N.  C.)  619  (1837) ;  Hemphill  v.  Ross,  m  N. 
C.  477  (1872). 

5  Burnhara  v.  De  Bevorse,  8  How.  (N.  Y.)  159  (1853); 
Winslow  V.  Clark,  47  N.  Y.  261  (1872). 

^  See  i::5§  48  and  49,  post,  on  heirs  and  devisees.  The  pur- 
chaser of  a  devisee  is  a  necessary  defendant.  Ohling  v.  Luitjens, 
32  111.  23  (1863). 

^  In  Hall  V.  Huggins,  19  Ala.  200  (1851),  the  owner  purchased 


90  PARTIES    TO    MORTGAGE    FORECLOSURES. 

chaser  of  an  e.isement  from  the  owner  of  an  equity  of 
redemption  is  also  a  necessary  defendant ;  and  if  he  is 
omitted,  he  may  continue  to  use  and  enjoy  his  easement 
without  interruption,  as  the  action  does  not  extinguish 
nor  affect  his  rights,^  The  rule  of  this  section  remains 
the  same,  whether  the  foreclosure  be  conducted  as  an 
action  or  by  advertisement;  the  notice  required  in 
foreclosures  by  advertisement  must  be  served  on  the 
owner  of  the  equity  of  redemption.-  If  the  owner  has 
notrecorded  his  deed,  and  the  mortgagee  receives  no  notice 
of  his  ownership,  the  foreclosure  may  safely  proceed 
without  making  the  owner  a  party,  providing  a  Us 
pendens  is  properly  filed.'     It  will  be  readily  seen  that 

the  equity  at  a  sale  held  pursuant  to  an  order  of  the  Orphans' Coin^t. 
Where  a  mortgage  is  foreclosed  pending  proceedings  to  condemn 
lands  for  public  uses,  the  parties  prosecuting  the  proceeding 
should  be  made  defendants.  Colehour  v.  State  Savins^s  Institu- 
tion, 90  111.  152  (1878). 

i  In  Packer  v.  Rochester  &  Syracuse  R.  R.  Co.,  17  N.  Y.  283, 
297  (1858),  the  easement  granted  was  to  certain  mill-owners  to 
construct  and  maintain  a  race ;  the  mortgagee  foreclosing, 
omitted  them  as  defendants.  Pratt,  J.,  said:  "The  mortgage, 
therefore,  stands  unforeclosed  as  to  the  rights  of  the  mill-owners." 
See  also  the  opinion  per  Denio,  J.,  p.  287. 

-  Van  Slyke  v.  Shelden,  9  Barb.  (N.  Y.)  278  (1850) ;  Stanton 
V.  Kline,  11  N.  Y\  199  (1854),  reversinar  16  Barb.  9  ;  St.  John  v. 
Bumpstead,  17  Barb.  (N.  Y'.)  100  (1852).  See,  especially,  Mickles 
V.  Dillaye.  15  Hun  (N.  Y.),  296  (1878);  New  York  Code,  §  2389. 

•^  Ostrom  V.  McCann,  'zi  How.  (N.  Y.)  431  (1860);  Kipp  v. 
Brandt,  49  id.  358  (1875) ;  New  York  Code,  §  1670.  See  §  42, 
post;  Daniels  v.  Henderson,  49  Cal.  245  (1874);  Aldrich  v. 
Stephens,  49  id.  676  (1875).  See  Tucker  v.  Leland,  75  N.  Y'.  186 
(1878) ;  Houirhton  v.  Kneeland,  7  Wis.  244  (1858) ;  contra,  Hall 
V.  Nelson,  U^How.  (N.  Y  )  S2  (1856) ;  S.  C,  23  Barb.  (N.  Y^)  88. 
See  Carpentier  v.  Williamson,  25  Cal.  154  (1864).  In  Webb  v. 
Maxan,  11  Tex.  678,  684  (1854),  the  court  held  that,  if  the 
mortgagee  foreclosing  received  no  notice  of  the  subsequent  pur- 
chaser's deed,  the  decree  would  be  conclusive  against  the  pur- 
chaser; aliter,  if  he  had  notice. 


WHO    MAY    OBJECT    TO    OMISSION    OF    OWNER.  91 

the  principles  of  law  stated  in  this  section  are  based 
upon  the  broader  and  more  general  principle  already 
noticed, — that  no  person  having  an  interest  in  the 
mortgaged  premises  will  be  affected  by  the  decree  of  lore- 
closure,  unless  he  is  made  a  party  to  the  action  and 
brought  within  tlie  jurisdiction  of  the  court. ^ 

If  the  owner  of  the  equity  of  redemption  is  omitted  as 
a  defendant,  the  mortgagor  or  any  other  party  interested 
in  the  action  may  object  to  it  by  demurrer,  if  the  defect 
appears  upon  the  face  of  the  complaint,  or  by  answer  if 
the  defect  does  not  so  appear  ;'-  if  objection  is  not  taken, 
the  defect  will  be  deemed  waived.'^  If  the  owner  is 
omitted,  it  is  not  necessary  for  him  to  maintain  an 
action  to  redeem  in  order  to  assert  his  rights,  for  he 
is  already  the  owner  of  the  title,  never  having  been 
divested  of  it ;  and  the  purchaser  at  the  sale,  having 
acquired  no  title,  is  a  stranger  to  the  premises,  and  can  be 
ejected  or  proceeded  against  for  trespass.*  The  owner 
may,  however,  maintain  an  action  to  redeem  if  he  de- 
sires ;  indeed,  this  is  the  usual  practice,  as  it  brings  the 
question    of    title    directly    in    issue.^      If   the   owner 

1  See  §§  32,  38,  ante. 

^  Reed  v.  Marble,  10  Pais^e  (N.  Y.),  410  (1843) ;  Hall  v.  Nel- 
son, 23  Barb.  (N.  Y.)  88  (1856) ;  Bard  v.  Poole,  12  N.  Y.  508 
(1855)  ;  Kittle  v.  Van  Dyck,  1  Sandf.  Ch.  {N.  Y.)  76  (1843) ; 
Diinlap  V.  Wilson,  32  111.  517  (1863) ;  Erickson  v.  Rati'erty,  79  id. 
210  (1875);  Cord  v.  Hirsch,  17  Wis.  403  (1863);  Baker  v. 
Hawkins,  29  id.  576  (1872)  ;  Taylor  v.  Collins,  51  id.  123  (1881). 
See  Williams  v.  Meeker,  29  Iowa,  292  (1870). 

=*  Davis  V.  Bechstein,  69  N.  Y.  440  (1877). 

*  Van  Slvke  v.  Shelden,  9  Barb.  (M.  Y.)  278  (1850)  ;  Watson 
V.  Spence,  20  Wend.  (N.  Y.)  260  (1838).  In  Kelgour  v.  Wood, 
64  111.  345  (1872),  it  was  held  that  ejectment  could  not  be  nnun- 
tained.  See  Cutter  v.  Jones,  52  111.  84  (1869);  see  Fogal  v. 
Pirro,  10  Bosw.  (N.  Y.)  100  (1862). 

'"  See  Miner  v.  Beekman,  50  N.  Y.  337,  344  (1872),  holding  also 


92  PARTIES    TO    xMORTGAGE    FORECLOSURES. 

of  the  equity  has  assumed  the  payment  of  the  mort- 
gage, there  is  a  double  reason  for  making  him  a  party, 
as  he  has  thereby  become  the  principal  debtor,  and  the 
mortgagor  only  a  surety ;  and  if  a  judgment  of  defi- 
ciency is  sought,  it  must  be  first  against  such  owner/ 

§  39.  Intermediate  purchasers  and  o^wners  of  the  equity 
of  redemption  v/ho  are  no  longer  owners,  gen- 
erally not  necessary. 

For  the  reasons  stated  in  a  preceding  section,  parties 
who  have  once  owned  the  equity  of  redemption  in  mort- 
gaged premises,  and  again  parted  with  the  same  by  an 
absolute  conveyance,  are  not  necessary  to  a  foreclosure 
for  the  purpose  of  perfecting  the  title.-  As  they  have 
no  interest  in  the  mortgaged  property,  they  can  have 
no  interest  in  an  action  affecting  it.  It  is  only  when 
latent  equities,  fraud  or  defects  in  the  deeds  may  in- 
validate the  mesne  conveyances  of  intermediate  pur- 
chasers, or  when  some  of  their  deeds  remain  unrecorded, 
that  they  and  their  grantors  become  necessar}^  parties. 
If  they  and  all  their  grantors,  subsequent  to  the  delivery 
of  the  mortgage,  have  assumed  the  payment  of  the  mort- 
gage debt,  they   may  properly  be  made  defendants  if  a 

that  the  action  must  be  brought  within  ten  years.  Graudin  v. 
Hernandez,  29  Hun  (N.  Y.),  '699,  403  (1883) ;  Carll  v.  Butman, 
7  Me.  102  (1830)  ;  Green  v.  Dixon,  9  Wis.  530  (1859).  A  person 
who  succeeds  to  the  owner's  interest  may  also  redeem.  Veach  v. 
Schaup,  3  Clarke  (Iowa),  194  (1856) ;  Porter  v.  Kilgore,  32  Iowa, 
380  (1871).     See  the  cases  cited  in  notes  2  and  3,  p.  89,  ante. 

^  See  §  103,  post. 

2  Lockwood  V.  Benedict,  3  Edw.  Ch.  (N.  Y.)  472  (1841).  In 
point,  Haley  v.  Beimett,  5  Port.  (Ala.)  452  (1837) ;  Merritt  v. 
Phenix,  48  Ala.  87  (1872) ;  Lewis  v.  Elrod,  38  id.  17  (1861) ; 
Scarry  v.  Eldridge,  63  Ind.  44  (1878) ;  Barton  v.  Kingsbury,  43 
Vt.  640  (1871) ;  Soule  v.  Albee,  31  id.  142  (1858).  See  Vrooman 
V.  Turner,  69  N.  Y.  280  (1877).     See  §  35,  ante. 


PURCHASER    PENDENTE    LITE.  93 

personal  judgment  for  deficiency  is  sought  against  them, 
or  any  of  them.^  The  interesting  question  of  personal 
liability  for  the  payment  of  the  mortgage  debt  when  it 
has  been  assumed  by  a  grantee  in  his  deed  of  con- 
ve3^ance,  will  be  fully  considered  in  a  subsequent  ser^tion.^ 

§  40.  Purchaser  pendente  lite  not  necessary. 

The  general  principle  is  now  recognized  by  all  the 
courts  of  this  country  and  of  England,  that  a  purchaser, 
assignee  or  attaching  creditor  of  mortgaged  premises, 
during  the  pendency  of  a  suit  to  foreclose,  is  bound  by  the 
decree  made  against  the  party  to  the  action  from  whom  he 
derives  title  f  it  is  not  necessary  to  bring  a  party,  so 
acquiring  title,  before  the  court.  The  reasons  for  this 
rule  will  be  found  in  the  two  succeeding  sections.  Such 
a  purchaser  acquires,  of  course,  only  the  identical  rights 
of  title  or  incumbrance  which  the  person  from  whom  he 

1  Vrooman  v.  Turner,  supra;  Scarry  v.  Eldridge,  Q'S  Ind.  44 
(1878).     See  LockAvood  v.  Benedict,  H  Edw.  Ch.  (N!y.)472  (1841). 

-  See  §  103  e/  seq  ,  po^t. 

3  \Vatt  V.  Watt,  2  Barb.  Ch.  (N.  Y.)  371  (1847);  Jackson  v. 
Losee,  4  Sandf.  Cli.  (N.  Y.)  381  (184(3);  Curtis  v.  Hitchcock,  10 
Paige  (N.  Y.),  39;»  (1843);  The  People's  Bank  v.  Hamilton  Co., 
lb.  481,  490;  Zeiter  v.  Bowman,  6  Barb.  (N.  Y.)  133  (1849); 
Cleveland  v.  Boerura,  23  id.  201  (185H) ;  S.  C,  3  Abb.  (N.  Y.) 
294 ;  S.  C.  on  appeal  from  the  judgment  at  special  term,  27  Barb. 
(N.  Y.)  252  (1858);  atf'd  24  N.  Y.  618  (1862);  Ostrom  v. 
McCann,  21  How.  (N.  Y".)  431  (1860);  Lenihan  v.  Hamann,  55 
N.  Y".  652  (1873);  Lamont  v.  Cheshire,  65  id.  30  (1875);  Fuller 
V.  Scribner,  76  id.  190  (1879);  Weeks  v.  Tomes,  16  Hun  (N.  Y.), 
349  (1878) ;  Horn  v.  Jones,  28  Cal.  194  (1865) ;  Addison  v.  Crow, 
5  Dana  (Ky.),  279  (1837);  Chickeriiiif  v.  Fullerton,  90  111.  520 
(1878).  See  Loomis  v.  Riley,  24  111.  307  (1860),  where  a  tenant 
in  common  of  an  undivided  half  of  certain  lands  mortgaged  his 
half  during  the  pendency  of  a  partition  suit ;  Rogers  v.  Holyoke, 
14  Minn.  220  (1869).  In  Chapman  v.  West,  17  N.  Y.  125  (1858), 
the  action  was  for  the  specific  performance  of  a  land  contract. 
See  Fisher,  §i^  380-388,  and  the  English  cases  cited. 


94  TARTIES    TO    MORTGAGE    FORECLOSURES. 

purchased  held  at  the  time  of  the  transfer.  The  earlj 
decisions  upon  the  proposition  of  this  section  endeavored 
to  make  a  distinction  between  voluntary  transfers  and 
those  accomplished  by  operation  of  la  w.^  It  has  been  said 
by  one  of  our  ablest  judges,-  that  there  are  English  and 
American  cases  holding;  that  when  the  interest  of  a 
party  to  the  action  is  cast  upon  the  transferee  by 
operation  of  law,  and  not  by  the  act  of  such  party,  the 
foreclosure  will  be  defective,  unless  the  transferee  is 
brought  before  the  court;  but  he  intimates  that  these 
cases  are  not  to  be  relied  upon,  though  he  refers  to  the 
case  of  Seds;iuick  v,  Cleveland'^  as  an  illustration. 

The  statutes  in  most  states  now  provide  for  filing  a 
notice  of  pendency  of  action,  settling  this  question  in  ac- 
cordance with  the  general  principle  above  stated  ;  and  it 
matters  not  whether  the  transferee  acquires  his  title  b}^ 
the  voluntary  act  of  the  transferer,  or  b}'  operation  of 
law.  Though  the  plaintiff  is  not  bound  to  amend  his  com- 
plaint, so  as  to  bring  in  a  purchaser  or  an  incumbrancer 
pendente  lite,  he  may  do  so  if  he  chooses.;  the  purchaser 
can  appear  and  defend  in  the  name  of  the  party  from 
whom  he  acquired   his  interest,^  or  he  can  be  made  a 

1  Cleveland  v.  Boerum,  28  Bavb.  (X.  Y.)  20.5  (1856).  See  the 
same  case  affirmed  on  appeal  in  24  N.  Y.  filo  (18(52). 

-  Cleveland  v.  Boernm.  24  N.  Y.  609  (1862).  per  Wright,  J., 
a  leading  case;  Sedgwick  v.  Cleveland,  7  Paige  (N.  Y.),  290, 
291  (1838) ;  Anon.  v.  Anon.,  10  id.  20  (1842) ;  Smith  v.  Sansrer,  3 
Barb.  Ch.  (N.  Y.)  860  (1848).  These  last  two  cases  seem  to  be 
overruled  by  Cleveland  v.  Boernm,  24  X.  Y.  609(1862);  Lenihan 
V.  Haniann,  55  id.  652  (1873). 

■'  7  Paii^e  (X.  Y.),  281  (1888). 

4  Cleveland  v.  Boernm,  24  X.  Y.  620.  621  (1862) ;  The  People's 
Bank  v.  Hamilton  Co.,  10  Paiice  (X.  Y.).  484  (1843)  :  Fisher, 
§  885;  Foster  v.  Deacon,  6  Madd.  (Enij:.)  59  (1821) :  Coles  v. 
Forrest,  10  Beav.  (Ensr.)  552  (1847). 


COMMON-LAW    DOCTRINE    OF    LIS    PENDENS.  95 

party  on  his  own  application^  by  substitution,  or  subro- 
gation.^ 

§  41.  Common-law  doctrine  of  lis  pendens. 

The  doctrine  of  lis  pende?is  and  the  statutes  enacted  in 
the  several  states  to  regulate  the  same,  are  of  the 
greatest  inii^ortance  to  the  plaintiff  in  determining  who 
are  necessary  defendants  to  a  foreclosure,  and  of  equal 
importance  to  other  parties  having  any  interest  in  the 
equity  of  redemption.  Lord  Bacon  has  stated  the  com- 
mon-law rule  to  be  that  "no  decree  bindeth  any  that 
Cometh  in  bona  fide  by  conveyance  of  the  defendant  be- 
fore the  bill  exhibiteth,  and  is  made  no  party,  neither 
by  bill  or  order  ;  but  when  he  comes  in  pendente  lite,  and 
while  the  suit  is  in  full  prosecution,  and  without  any 
order  of  allow^ance  or  privity  by  the  court,  then  regularly 
the  decree  bindeth."''  The  rule  had  its  origin  in  the 
civil  law,  and  was  pungently  stated  in  the  legal  maxim, 
pendente  lite,  nihil  innovetur.  It  is  well  settled  that  a  judg- 
ment in  an  action  in  rem  binds  not  only  the  parties,  but 
also  all  others  claiming  or  deriving  title  under  them  by 

1  Cleveland  v.  Boerum,  supra;  The  People's  Bank  v.  Hamilton 
Co.,  supra;  Clow  v.  Derby  Coal  Co.,  98  Penn.  432  (1881)  ;  Eyster 
V.  Gaff,  91  U.  S.  521  (1875). 

2  Hewai-d  v.  Huntington,  94  N.  Y.  114  (18.^3). 

■^  Bacon's  Works,  vol.  4,  page  515.  In  Bishop  of  Winchester  v. 
Paine,  11  Ves.  (Eng.)  194,  201  (1805),  Sir  William  Grant  said 
that  "  he  who  purchases  during  the  pendency  of  the  suit,  is  bound 
by  the  decree  that  may  be  made  against  the  person  from  whom  he 
derives  the  title  ;  the  litigating  parties  are  exempted  from  the 
necessity  of  taking  any  notice  of  a  title  so  acquired ;  as  to  them 
it  is  as  if  no  such  title  existed,  otherwise  suits  would  be  intermin- 
able, or,  which  would  be  the  same  in  effect,  it  would  be  the 
pleasure  of  one  party  at  what  period  the  suit  should  be  determined. 
The  rule  may  sometimes  operate  with  hardship,  but  general  con- 
venience requires  it." 


96  PARTIES    TO    MORTGAGE    FORECLOSURES. 

a  transfer pende?ite  lite}  Indeed,  text-writers  deduce  from 
the  cases  the  broad  rule  that  decisions  in  rem  are  binding 
and  conclusive,  not  only  on  the  parties  actually  litigating 
the  case  and  their  privities,  but  also  on  all  other 
persons,  if  the  suit  was  commenced  against  the  proper 
parties,  and  judgment  was  obtained  bona  fide  and  with- 
out fraud. - 

§  42.  Ne"w  York   statutory  provisions    for  lis  pendens ; 

other  states. 

Many  of  the  states,  in  their  codes  or  general  statutes, 
have  enacted  the  common-law  rule  into  a  statutory 
requirement  and  prescribed  special  rules  of  practice  in 
connection  with  it.  New  York  first  did  this  in  1823,^ 
by  a  special  statute,  which  was  re-enacted  in  the 
Revised  Statu tes,"*  and  subsequently  formed  into  §  132 
of  the  old  Code  of  Civil  Procedure  (§§  1670  and  1671  of 
the  Code  of  1880).  Prior  to  1851  the  notice  could  be 
filed  only  at  the  time  of  commencing  the  action;  now  it 
can  be  filed  witli  the  complaint,  and  becomes  operative 
at  once  before  the  summons  is  served  on  any  of  the 
defendants.     Prior  to  1858  a  grantee,  whose  deed  was 

1  Hull  V.  Lyon,  27  Mo.  Rep.  570  (1^58) ;  R.  C.  1855,  p.  1089; 
Rog-ers  v.  Holyoke,  14  Miiiu.  220  (1869) ;  McPherson  v.  House!, 
2  Beas.  (N.  J.  Eq.)  299  (1861) ;  Youugma!i  v.  Elmira  &  W.  Rail- 
road, 65  Peim.  278  (1870). 

-  yee  Cleveland  v.  Bderuni,  24  N.  Y.  617  (1862).  The  learned 
jurist,  Theodore  C.  Dwight,  as  Commissioner  of  Appeals,  in 
Lamont  v.  Cheshire,  65  N.  Y.  oO,  36  (1875),  (X)nsidered  at  length 
the  history  and  the  nature  of  a  notice  of  pendency  of  action, 
ai.'d  the  office  it  was  designed  to  fiiUill.  iSee  Bellamy  v.  iSabine, 
1  De  G-ex  &  Jones  (Eng.),  566  (1857)  a  leading  English  case  ; 
also  Hunt  V.  Hunt,  17  Pick.  (Mass.)  118  (1885). 

=*  Laws  of  New  York,  1828,  p.  213,  §  11. 

■*  Revised  statutes,  vol.  2,  p.  174,  §  43. 


EFFECT    OF    FILING    LIS    PENDENS.  97 

not  recorded,  had  to  be  discovered  by  the  plaintiff  and 
made  a  party  to  the  action/  but  since  and  at  present 
every  person  receiving  or  recording'^  his  conveyance 
after  the  filing  of  such  notice  with  the  complaint,  even 
though  it  be  a  few  hoars  only,^  is  deemed  a  suljsequent 
purchaser  and  incumbrancer  ;  he  stands  in  the  same 
position  as  he  would  if  he  had  actually  purchased  the 
land,  or  received  his  incumbrance,  after  the  filing  of 
such  notice,  and  he  is  bound  by  such  proceedings  "  to 
the  same  extent  as  if  he  was  a  party  to  the  action,"'^ — 
that  is,  he  is  barred  and  foreclosed  of  all  rights  in  the 
mortgaged  premises.  A  purchaser  may  be  brought  into 
the  action  by  a  supplemental  bill  if  desired.''  Prior  to 
1862  the  lis  pendens  was  inoperative  as  to  each  defend- 
ant until  the  summons  had  been  served  upon  him,''  l^ut 
an  amendment  of  that  year  (continued  in  the  Code  of 
1880)  made  the  notice  operative  from  tlie  time  of  filing 
the  complaint,  and  also  fixed  the  limit  of  sixty  days 

1  Hall  V.  Nelson,  14  How.  (N  Y.)  32  (1856) ;  S.  C,  23  Barb.  88. 

2  Ostroiu  V.  McCann,  21  How.  (N.  Y.)  431  (1860),  citinar  ?;  132 
of  the  old  New  York  Code ;  Earle  v.  Barnard.  22  id.  437,  440 
(1862) ;  Kipp  v.  Brandt,  49  id.  358  (1875),  strongly  in  point.  Sup- 
porting these  cases,  see  Daniels  v.  Henderson,  49  Cal.  245  (1874), 
and  Aldrich  v.  iStephens,  lb.  676  (1875). 

•^  Ostrom  V.  McCann,  supra :  Stern  v.  O'Connell,  35  N.  Y^.  104 
(1866).  See  Weyh  v.  Boylan,'62  How.  (N.  Y.)  397  (1882),  aff' d 
63  id.  72  (1882),  where,  after  the  commencement  of  the  action 
and  the  filing  of  a  Us  jjendejis,  the  mortgagor  conveyed  his  equity 
of  redemption  and  died  ;  the  grantee  was  held  an  unnecessary 
party  on  reviving  the  action. 

•*  New  York  Code,  §  1671 ;  Thomas  on  Mortgages,  p.  255. 

5  Harrington  v.  Slade,  22  Barb.  (N.  Y.)  161  (1856).  See  §  40, 
ante. 

«  Burroughs  v.  Reiger,  12  How.  (N.  Y.)  172  (1856);  Muscott 

V.  Wool  worth,  14  id.  477  (1857)  ;  Butler  v.  Tomlinson,  38  Barb. 

(N.  Y.)  641  (1862) ;  S.  C,  15  Abb.  (N.  Y.)  88  (1862) ;  Tate  v.  Jor- 

•dan,  3  id.  392  (1856);  Fuller  v.  Scribner,  16  Hun  (N.  Y.),  130 

(1878);  ard,  76  N.  Y.  190  (1879). 

7 


98  PARTIES    TO    MORTGAGE    FORECLOSURES. 

within  which  the  summons  must  be  served,  or  the  notice 
would  become  void.' 

Prior  incumbrancers  and  persons  whose  rights  are 
superior  to  those  of  the  plaintiff  are  not  affected  by  the 
notice."  So,  also,  a  person  who  claims  title  by  virtue 
of  a  tax  deed  is  not  bound  by  the  notice.'^  The  notice 
oilis pendens  is  made  by  statute  constructive  notice  to  per- 
sons who  are  not  parties  to  the  action,  but  who  acquire 
their  rights  from  or  under  those  who  have  been  brought 
within  the  jurisdiction  of  the  court.  As  their  rights  alone 
are  affected,  they  alone  can  take  advantage  of  the  omis- 
sion to  file  tiie  notice,  or  of  any  defects  in  it.*  Whenever 
there  is  a  defect  in  filing  the  lis  pendens,  as  the  neglect 
to  file  the  complaint  with  it,  and  any  person  obtains  an 
interest  in  or  a  lien  upon  the  equity  of  redemption  from 
a  party  defendant  during  the  pendency  of  the  action  and 
the  continuance  of  the  defect,  he  will  not  be  bound  by 
the  decree  and  may  redeem  f  the  purchaser  at  a  sale 
under  the  decree  of  foreclosure  will  receive  a  defective 
title,  although  an  order  ma^'  have  Ijeen  made  that  the 
complaint  be  filed  nunc  pro  tunc. 

1  New  York  Code,  §  1670 ;  in  point,  Weeks  v.  Tomes,  16  Hun 
(N.  Y.),  349  (1878) ;  aft 'd  7f>  N.  Y.  601  (1879). 

2  IStuyvesant  v.  Hall,  2  Barb.  Ch.  (N.  Y.)  151  (1847);  «tuy- 
vesaiit  V.  Hone,  1  Sandf.  Ch.  (N.  Y.)  419  (1844)  ;  Bank  v.  Con- 
nelly, 8  Abb.  (N.  Y.)  128  (1858)  ;  Chapman  v.  Draper,  10  How. 
(N. 'Y.)  367  (1854);  Chapman  v.  West.  ImplVl,  17  N.  Y.  125 
(1858). 

3  Becker  v.  Howard,  4  Hun  (N.  Y.),  359  (1875);  aff"d,  66 
N.  Y.  5  (1876). 

^  White  V.  Coulter,  1  Hun  (N.  Y.),  357  (1874). 
■    5  Weeks  v.  Tomes,   16  Hun    (N.  Y.),  849  (1878);    Dakin  v. 
Insurance  Co.,  77  N.  Y.  601  (1879).     In  point,  Olson  v.  Paul,  56 
Wis.  30  (1882). 


THE    MORTGAGOR    A    MARRIED    WOMAN.  99 

§  43.  Mortgagor   a    married,  woman,    having   a   separate 
estate,  necessary. 

Where  a  married  woman  holds  the  fee  title  of  property 
in  her  own  name  as  a  separate  estate,  and  mortgages 
the  same,  or  where  she  becomes  the  owner  of  the  equity 
of  redemption  in  property  j)reviously  mortgaged,  she  is 
a  necessary  party  to  a  foreclosure  for  the  purposes  stated 
in  this  chapter.^  A  married  woman  had  no  capacity  at 
common  law  to  make  contracts,  and  consequently  no 
right  to  execute  a  mortgage  on  her  separate  estate. 
Statutes  in  England  and  America  have  greatly  enlarged 
a  married  woman's  rights  in  property,  so  that  she  can 
now  make  valid  contracts  affecting  her  real  estate ;  but 
in  Massachusetts,  New  Jersey  and  Pennsylvania  it  is 
necessary,  even  at  the  present  day,  for  the  husband  to 
join  with  his  wife  in  the  execution  of  a  mortgage  upon 
her  separate  estate  in  order  to  make  the  mortgage  valid.- 
It  is  in  New  York,^  especially,  that  married  women's 
rights  have  been  increased,  so  that  at  present  the  law 

1  Cotide  V.  8hepard,  4  How.  (N.  Y.)  75  (1849).  For  an  exhaust- 
ive history  and  review  of  the  cases  afiecting  the  rii4:ht  of  a  feme 
covert  to  mortgage  her  real  estate,  see  the  leading  case  of  Albany 
Fire  Ins.  Co.  v.  Bay,  4  N.  Y.  9,  38  (1850);  aff'.i:  4  Barb.  407 
(1848);  opinions  by  Jewett,  Taylor  and  Pratt,  JJ.  Eaton  v. 
Nason,  47  Me.  132  (18(50) ;  Ellis  v.  Keiivmi,  25  bid.  134  (1865)  ; 
Newhart  V.  Peters,  80  N.  C.  Rep.  106  (1879)  ;  Galwav  v.  Fuller- 
ton,  2  C.  E.  Green  (17  N.  J.  Eq.),  389  (1866) :  McFerlin  v.  Meni- 
fee, 6  Coldwell  (Teim.),  499(1869)  ;  Hill  v.  Edmonds,  5  De  G.  & 
8.  (Erl^^)  603  (1852)  :  Thomas  on  Mort^^ages,  p.  196. 

2  Weed  KSewiug  Mach.  Co.  v.  Emerson;  115  Mass.  554  (1874); 
Armstrotig  v.  Ross,  20  N.  J.  Eq.  109  (1869);  Merchant  v.  Thom- 
son, 34  id.  73  (1881),  and  the  cases  cited  ;  Black  v  Galway,  24 
Pcnn.  Ht.  18  (1854).  Conflicting  witli  this  case,  see  Glass  v.' 
Warnick,  40  Penn.  140  (1861),  and  Gralinin  v.  Lony,  65  id.  383 
(1870).     «ee  the  New  York  act  of  1848. 

3  Laws  of  New  York  1848,  chap.  200;  1849,  chap.  375;  18(50, 
chap.  90;  1862,  chap.  172;  1884,  chap.  381. 


100  PARTIES    TO    MORTGAGE    FORECLOSURES, 

applicable  to  the  subject-matter  of  this  work,  with 
reference  to  a  male  or  a  feme  sole,  is  equally  applicable 
with  reference  to  nfeme  covert.  The  interesting  question 
of  a  married  woman's  liability  for  a  personal  judgment 
of  deficiency  will  be  fully  considered  hereafter.^ 

§  44.  Wife  of  mortgagor  or  o^vner  of  the  equity  of  redemp- 
tion necessaiy. 

It  has  become  a  settled  rule  of  law  in  all  states  where 
the  common-law  doctrine  of  dower  remains  unchanged, 
and  in  many  states  where  statutes  have  prescribed  a 
wife's  rights  in  the  real  estate  of  her  husband,  that  the 
inchoate  right  of  dower  of  a  wife  in  the  lands  of  her 
husband  is  a  real  and  existing  interest,  and  as  much  en- 
titled to  protection  as  the  vested  rights  of  a  widow  ;  and 
that  neither  can  be  impaired  by  any  judicial  proceedingto 
which  the  wife  or  widow  is  not  made  a  party.  As 
such  rights  constitute  an  interest  in  real  estate,  it  is 
plain  that  a  wife  or  widow  must  be  made  a  party  to  a 
foreclosure  suit  where  she  has  signed  the  mortgage,  re- 
leased her  rights  otherwise,  or  acquired  those  rights 
subsequent  to  the  execution  of  the  mortgage.  The 
right  of  a  wife  to  be  endowed  of  an  equity  of  redemp- 
tion has  long  been  put  at  rest.  She  is  an  absolutely 
necessary  party  to  an  action  in  order  to  produce  such  a 
title  as  a'  purchaser  at  the  sale  will  be  compelled  to 
accept."^     If   the  mortgagor   has  two    wives,   both  are 

1  8ee  §§  96  and  97,  post. 

2  Bell  V.  The  Maj-or,  10  Pai^re  (N.  Y.),  49,  67  (1S43) ;  Denton 
V.  jSaiinv,  8  Barb.  (N.  Y.)  618  aSSO);  Mills  v.  Van  Voorhies,  20 
N.  Y.  412  (1859);  Merchant's  Bank  v.  Thomson,  55  id.  7  (1873); 
Wheeler  v.  Morris.  2  Bosw.  (N.  Y.)  524,  529  (1858).  See  Kay  v. 
Whittaker,  44  N.  Y.  565,  572  (1871),  holding  that  the  wife  is  not 
an  indispensable  defendant  to  sustain  the  action,  but  that  her  rights 


WIFE    OF    MORTGAGOR    A    DEFENDANT.  101 

necessary  defendants.^  Though  a  wife  may  have  made 
a  grant  of  her  inchoate  right  of  dower,  she  remains  a 
necessary  party  ;  the  grantee  acquires  no  interest  by  the 
conveyance,  as  an  inchoate  right  of  dower  is  inalienable." 
Wherever  the  right  of  dower  has  been  abolished  by 
statute,  the  wife  is  not  a  necessary  defendant,  as  she 
has  no  interest  in  her  husband's  lands.^ 


will  not  becut  off  bv  the  decree,  unlesssheis  made  a  party ;  Kittle 
V.  Van  Dyck,  1  Haudf.  Ch.  (N.  Y.)  76,  79  (1^43);  Blydenburgh  v. 
Northrop,  13  How.  (N.  Y.)  289  (185  ■),  relying  upon  Denton  v. 
Nanny,  supra;  Hubbell  v.  ISibley,  5  Lans.  (N.  Y.)  56(1871); 
Mabnry  v.  Ruiz,  58  Cal.  11  (1881)  ;  Watt  v.  Alvord,  25  Ind.  533 
(1865) ;  Verry  v.  Robinson,  25  id.  14  (1865) ;  Kissel  v.  Eaton, 
64  id.  248  (1878);  Daniels  v.  Henderson,  5  Fla.  452  (1854); 
Smith  V.  Eustis,  7  Me.  41  (1830);  Campbell  v.  Knights,  24  id. 
332  (1844);  Gage  v.  Ward,  25  id.  101  (1845);  Richardson  v. 
Skoltield,  45  id.  386  (1858) ;  Atkinson  v.  Stewart,  46  Mo.  Rep. 
510  (1870) ;  Snyder  v.  Snyder,  6  Mich.  470  (1859) ;  Swan  v.  Wis- 
wall,  15  Pick.  (Mass.)  1*26  (1833);  Lund  v.  Woods,  11  Mete. 
(Mass.)  566  (1846).  See  Rands  v.  Kendall,  15  Ohio  Rep.  671,  675 
(1846),  where  the  law  of  dower  in  Ohio  is  explained,  with  citations 
from  cases  and  statutes ;  Taylor  v.  Fowler,  18  id.  567  ;  Conover 
V.  Porter,  14  Ohio  St.  450  (1863) ;  McArthur  v.  Franklin,  15  id. 
485  (1864);  S.  C,  16  id.  193  (1865);  State  Bank  of  Ohio  v. 
Hinton,  21  id.  509  (1871);  Ketchum  v.  Shaw,  28  id.  503  (1876)  ; 
Chiswell  V.  Morris,  1  McCarter  (14  N.  J.  Eq.),  101  (1861) ;  El- 
dridge  v.  Eldridge,  lb.  195;  James  v.  Fields,  5  Heisk.  (Tenn.) 
394  (1871);  Gresrg  v.  Jones,  lb.  443;  Calmes  v.  McCrocker, 
8  Rich.  (S.  C.)  87  (1876).  But  see  Verree  v.  Verree,  2  Brev. 
(S.  C.)  211  (1807),  holding  that  in  1807  a  wife  was  not  entitled  to 
dower  in  an  equity  of  redemption.  In  Newhall  v.  Lynn  Bank', 
101  Mass.  428  (1869),  the  wife  of  a  husband  who  had  made  an 
assignment  in  batd^ruptcy  was  held  a  necessary  party  ;  but  in 
Huston  V.  Neil,  41  Ind.  504  (1873),  it  was  held  that  a  wife  had  no 
interest  in  the  partnership  real  estate  of  her  husband,  and  ac- 
cordingly was  not,  a  necessary  party  to  the  foreclosure  of  a  mort- 
gage on  the  same. 

1  Wood  V.  Chew,  13  How.  (N.  Y.)  86  (1856). 

2  Earle  v.  Barnard,  22  How.  (N.  Y.)  437  (1862). 

3  See  Ethridge  v.  Vernoy,  71  N.  C.  Rep.  184  (1874).  See 
Thornton  v.  Pi^g,  24  Mo.  Rep.  249  (1857),  for  the  statute  in 
Missouri,  foreclosure  being  held  a  statutory  action   at  law,  and 


102  PARTIES    TO    MORTGAGE    FORECLOSURES. 

If  the  wife  has  signed  the  mortgage,  she  is,  of  course, 
a  necessary  defendant.'  "  The  only  reason  why  the  wife 
of  a  mortgagor,  wlio  joins  in  the  execution  of  such  an 
instrument,  should  be  made  a  party,  is  to  bar  the  equity 
of  redemption  in  her  right  of  dower,  or  to  give  her  the 
opportunity,  before  it  is  foreclosed,  to  redeem  and  pre- 
vent its  sale."^  If  the  mortgage  was  executed  by 
the  husband  before  marriage,  the  wife  is  as  necessary  a 
defendant  as  though  it  had  been  executed  by  both  after 
marriage  and  during  coverture  f  after  the  husband's 
death  the  widow  remains  a  necessary  party .^ 

not   an    equitable    action.     See  the  preceding  section  for  other 
cases.     8ee  Pitts  v.  Aldrich,  11  Allen  (Mass.),  89  (1865). 

1  Leonard  v.  Adm'r  of  Villars,  23  111.  377  (1860) ;  Chambers  v. 
Nicholson,  80  Ind.  849  (1868) ;  Hartshorne  v.  Hartshorne,  1  Green 
Ch.  (N.  J.)  849  (1840) ;  Hinchman  v.  Stiles,  1  Stockt.  Ch.  (N.  J.) 
361  (1853).  Upon  the  general  question  of  a  wife's  right  of  dower 
in  mortgaged  i)rendses,  see  Campbell  v.  Caurpbell,  30  N.  J.  Eq. 
415  (1879).  See  the  cases  cited  in  the  first  note  to  this  section. 
Cory  V.  Wheeler,  14  Wis.  281  (1861);  Powell  v.  Ross,  4  Cal.  197 
(1854).  See  Nimrock  v.  Scanlin,  87  N.  C.  Rep.  119  (1883).  In 
Pitts  V.  Aldrich,  11  Allen  (Mass.),  89  (1865),  the  wife  was  held  not 
a  necessary  party  where  she  had  signed  the  mortgage.  Colt,  • 
J.,  writing  the  opinion  and  collating  the  authorities,  says  that 
the  law  of  Massachusetts  on  this  point  differs  from  that  of  all  the 
other  states.  In  Minis  v.  Minis,  1  Humph.  (Tenn.)  425  (1839), 
a  widow  who  had  si^'^ned  a  mortgage  was  held  not  a  necessary 
party.     See  Mclver  v.  Cherry,  8  i"d.'718  (1848). 

2  Wright  V.  Langley,  86  111.  381,  388  (1865). 

3  Smith  V.  Gardner,  42  Barb.  (N.  Y.)  856  (1864).  See  North- 
rup  V.  Wheeler.  43  How.  (N.  Y.)  122  (1872),  where  the  foreclosure 
was  bv  advertisement;  Gilbert  v.  Mai^irard,  1  Scam.  (111.)  471 
(1838).'  See  Bolton  v.  Ballard,  18  Mass.>27  (1816);  Hildreth  v. 
Jones,  lb.  525 ;  Eaton  v.  Simonds,  14  Pick.  (Mass.)  9cS  (1888). 
Seemingly  contra,  Bird  v.  Gardner,  10  Mass.  864  (1813).  In 
Wilson  V.  Scott,  29  Ohio  St.  {5oii  (1876),  the  wife  of  a  mortgagor, 
who  had  executed  the  mortgage  before  marriage,  was  held  not  a 
necessary  defendant.  See  the  Indiana  and  Illinois  cases  cited 
on  purchase-money  mortgages  in  the  following  notes. 

^  Burton  v.  Lies,  21  Cal.  87  (1862). 


WIFE    OF    MORTGAGOR    A    DEFENDANT.  103 

Where  the  mortgage  was  given  for  purchase-money, 
the  wife's  inchoate  right  of  dower  attaches  to  the  equity 
of  redemption,  and  she  is  just  as  necessary  a  defendant 
as  she  would  have  been,  had  she  signed  the  mortgage, 
and  her  rights  will  not  be  affected  unless  she  is  made 
a  party  to  the  action/  But  in  Illinois,-  Indiana^  and 
Michigan  ^  the  contrary  ruling  prevails,  that  the  wife 
is  not  a  necessary  defendant.  If  the  wife  does  not 
sign""  a  mortgage  executed  by  her  husband  during 
coverture,  an  action  to  foreclose  it  will  not  affect  her 
rights,  even  if  she  is  made  a  party,  without  allegations 

1  Mills  V.  Van  Voorhies,  20  N.  Y.  412  (1859) ;  S.  C,  10  Abb. 
(N.  Y.)  152  (1859),  aff'g  23  Barb.  125  (1856).  JuDaE  Selden, 
writing  the  opinion,  cites  Stow  v.  Tifft,  15  Johns.  (N.  Y.)  458 
(1818),  and  gives  a  sketch  of  the  history  of  the  statute  for  pur- 
chase-money mortgao-es.  Wheeler  v.  Morris,  2  Bosw.  (N.  Y.)  524 
(1858);  Blydenburgh  V.  Northrop,  13  How.  (N.  Y.)  289  (1856). 
Breckett  v.  Baura,  50  N.  Y.  8  (1872),  per  Rapallo,  J.,  holds  that 
the  wife  is  not  a  necessary  party  in  the  foreclosure  of  a  purchase- 
money  mortgage  by  advertisement.  Carter  v.  G-oodwin,  3  Ohio  8t. 
75  (1853) ;  Welch  v.  Buckins,  9  id.  331  (1859) ;  Culver  v.  Harper, 
27  id.  464  (1875) ;  Fox  v.  Pratt,  lb.  512  ;  Young  v.  Tarbell,  37 
Me.  509  (1854) ;  Thompson  v.  Lyman,  28  Wis.  266  (1871) ;  Cary 
v.  Wheeler,  14  id.  281  (1861);  Foster  v.  Hickox,  38  id.  408 
(1875);  authorities  collated  and  the  subject  generally  discussed, 
per  Ryan.  Ch.  J. 

2  Short  V.  Raub,  81  111.  509  (1876),  relying  upon  Stephens  v. 
Bichnell,  27  id.  444  (1862). 

3  Fletcher  v.  Holmes,  32  Ind.  497,  506,  536  (1870) ;  opinions 
per  Elliott,  J.,  and  Gregory,  Ch.  J.,  collating  and  reviewing 
the  cases;  Frozer,  J.,  wrote  a  dissenting  opinion.  See  Walters 
v  Walters,  73  Ind.  425  (1881).  But  dower  was  abolished  in 
Indiana  by  the  Code  of  1852,  and.  the  wife  was  made  an  heir. 
Hoskins  v.  Hutchings,  37  id.  324  (1871) ;  May  v.  Fletcher,  40  id. 
575  (1872),  per  Wooden,  J.,  citing  Fletcher  v.  Holmes,  supra,  and 
collating  the  cases.  Seethe  Indina  acts  of  1875  and  1879.  See 
the  early  case  of  Nottingham  v.  Calvert,  1  Carter  (Ind.),  527 
(1849),  ap})arently  supporting  the  New  York  rule. 

4  Amphlett  v.  Hibbard,  29  Mich.  298  (1874). 

^  Parmenter  v.  Binkley,  28  Ohio  St.  32  (1875)  ;  Baker  v. 
Scott,  62  111.  '6^  (1871) ;  Sutton  v.  Jervis,  31  Ind.  265  (1869) ;  Leary 


104  PARTIES    TO    MORTGAGE    FORECLOSURES. 

ill  the  complaint  setting  forth  the  facts,  and  even  with 
such  allegations  it  is  doubtful  whether  her  rights  will 
be  affected  in  any  way.^  In  an  action  brought  by  a 
widow  for  the  recovery  of  her  dower  in  lands  which 
had  been  sold  under  the  foreclosure  of  a  mortgage  which 
she  had  not  executed  with  her  husband,  her  dower  was 
held  paramount  to  the  mortgage  and  not  affected  by  the 
foreclosure,  although  she  was  made  a  defendant  under  the 
general  allegation  of  having  some  interest  in  the  mort- 
gaged premises.'  Where  a  widow's  dower  has  been  ad- 
measured in  premises  mortgaged  by  her  husband  alone, 
the  decree  of  foreclosure  should  be  for  the  sale  of  the 
remaining  two-thirds  in  the  first  j)lace,  and  then  for  the 
sale  of  the  admeasured  third, — subject,  however,  to  the 
dower.^  If  a  wife  or  widow,  having  a  right  of  dower,  is 
not  made  a  party,  it  is  believed  that  the  mortgagor 
and  other  defendants  may  object  to  the  omission  by 
demurrer  or  answer.*  The  wife  of  a  mortgagor  is  no 
more  a  necessary  party  than  the  mortgagor  himself 
after  she  has  joined  in  a  deed  with  him,  conveying  their 
equity  of  redemption  to  a  purchaser.^ 

V.  Shaffer,  79  id.  567  (1881) ;  Amphlett  v.  Hibbard,  29  Mich.  298 
(1874) ;  Mooiiey  v.  Maas,  22  Iowa,  380,  383  (1867).  A  mortgage 
signed  by  a  wife,  but  not  acknowledged  by  her,  is  not  so  executed 
as  to  release  her  dower.  Westfall  v.  Lee,  7  Clarke  (Iowa),  12, 14 
(1858);  Sheldon  v.  Patterson,  55  111.  507  a870).  See  Walsh  v. 
Wilson,  130  Mass.  124  (1881). 

1  Lewis  V.  Smith,  9  N.  Y.  502,  514,  519  (1854),  affV  H  Barb. 
152;  Merchants'  Bank  v.  Thomson,  55  N.  Y.  7  (1873);  Payn  v. 
Grant,  23  Hun  (N.  Y.),  134  (1880) ;  Foster  v.  Hickox,  38  Wis. 
408  (1875). 

2  Lewis  V.  Smith,  9  N.  Y.  502  (1854). 

3  Morton  v.  Noble,  22  Ind.  160  (1864). 

'^  See  §  38,  ante,  last  pai'agraph  ;  contra,  Jones,  §  1420. 
^  The  reasons  stated  in  §  35,  ante,  apply  to  the  wife  or  widow 
as  well  as  to  the  mortgagor.     Elmendorf  v.  Lockwood,  4  Lans. 


REMEDY    OF    WIFE    WHEN    OMITTED.  105 

The  remedy  of  the  wife  or  widow,  whenever  she  is 
omitted  as  .a  party,  is  to  redeem,^  but  this  right  to 
redeem  does  not  accrue  until  the  death  of  the  husband,  at 
which  time  the  dower  becomes  fixed.'-  She  can,  however, 
assert  her  rights  before  the  death  of  her  husband,  and 
have  the  value  of  her  inchoate  dower  computed  by  the 
annuity  tables  and  paid.'  Ejectment  cannot  be  main- 
tained by  a  wife  or  a  widow.*  If  the  widow  accepts  a 
devise  or  bequest,  which  is  made  to  her  in  lieu  of 
dower,  it  is  believed  that  she  will  not  be  a  necessary 
defendant.'' 

§  45.  Wife  of  mortgagor  ;  service  of  summons  or  process. 

At  common  law,  and  in  the  chancery  practice  of 
this  state,  the  summons,  or  subpana,  was  not  required 
to  be  served  upon  the  wife  of  the  owner  of  the  equity 
of   redemption,   where   she  was  made  a  party  to  the 

(N.  Y.)  393  (1871).  In  Maloney  v.  Horan,  12 -Abb.  N.  «.  (N.  Y.) 
289  (1872),  where  a  deed  was  set  aside  as  fraudulent,  the  wife  was 
held  restored  to  her  dower.  See  Papkin  v.  Bumstead,  8  Mass. 
491  (1812). 

1  Mills  V.  Van  Voorhies,  20  N.  Y.  412  (1859) ;  Ross  v.  Board- 
man,  22  Hun  (N.  Y.),  527  (1880) ;  Bell  v.  Mayor  of  New  York,  10 
Pai^e  (N.  Y.),  49  (1843);  Denton  v.  Nanny,  8  Barb.  (N.  Y.)  618 
(1850) ;  Carll  v.  Butman,  7  Me.  102  (1830) ;  Gibson  v.  Crehore,  5 
Pick.  (Mass.)  146  (1827)  ;  Van  Vranker  v.  Eastman,  7  Mete. 
(Mass.)  157  (1843).  See  Sheldon  v.  Patterson,  55  111.  507  (1870), 
where  several  morto"ages,  some  of  which  the  wife  had  not  exe- 
cuted, were  foreclosed  in  one  action  ;  Opdyke  v.  Bartles,  3  Stockt. 
Ch.  (N.  J.)  133  (1856). 

2  White  V.  Coulter,  1  Hun  (N.  Y.),  357,  366  (1874),  modilied  in 
58  N.  Y.  629  (1874) ;  Morton  v.  Noble,  22  Ind.  160  (1864),  followed 
in  Grable  v.  McCulloch,  27  id.  472  (1867). 

•^  Unger  v.  Loiter,  32  Ohio  St.  210  (1877). 

^  Smith  V.  Gardner,  42  Barb.  (N.  Y.)  356  (1864). 
.    ■'•  Zaegel  v.  Kuster,  51  Wis.  31  (1881).     See  Lewis  v.  Smith,  9 
N.  Y.  502  (1854). 


106  PARTIES    TO    MORTGAGE    FORECLOSURES. 

foreclosure  for  the  purpose  of  cutting  off  her  inchoate 
right  of  dower  ;  but  the  husband  was  bound,  except 
where  the  estate  was  the  separate  property  of  the  wife, 
to  enter  a  joint  appearance  and  to  put  in  a  joint  answer 
for  himself  and  wife.  This  practice  was  based  upon 
the  common-law  doctrine  that  a  husband  and  wife  are 
one  person,  and  that  the  wife's  inchoate  right  of  dower 
was  a  kind  of  interest  which  resulted  from  the  marital 
relation,  and  did  not  belong  to  her  as  a  separate  estate.^ 
"  The  general  rule  is,  that  the  service  of  a  subpoena 
against  husband  and  wife  on  the  husband  alone  is  a  good 
service  on  both,  and  the  reason  is,  that  the  husband  and 
wife  are  one  person  in  law,  and  the  husband  is  bound 
to  answer  for  both."  -  It  must  be  kept  in  mind  that 
such  service  upon  the  husband  is  good  only  when  the 
wife's  interest  in  the  property  is  an  inchoate  right  of 
dower ;  when  her  sej)arate  property  is  concerned  in  the 
action,  she  must  be  personally  served.'^  It  is  to  be  fur- 
ther observed  that  the  summons  or  process  must  be 
directed  to  the  wife ;  if  her  name  is  omitted,  the  court 
acquires  no  jurisdiction  of  her,  and  her  inchoate  right 
of  dower  will  not  be  cut  off  or  affected  in  any  way  by  the 
action ;  her  right  to  redeem  would  become  perfect  at 
the  death  of  her  husband. 

1  Ferguson  v.  Smith,  2  Johns.  Ch.  (N.  Y.)  139  (1816) ;  Leavitt 
V.  Cruger,  1  Paige  (N.  Y.),  421  (1829) ;  Eckerson  v.  Volhner,  11 
How.  (N.  Y.)  42  (1855);  Foote  v.  Lathrop,  53  Barb.  (N.  Y.)  183 
(1869),  appeal  dismissed  in  41  N.  Y.  358  (1869);  Lathrop  v. 
Heacock,  4  Lans.  (N.  Y.)  1  (1871). 

2  Ferguson  v.  Smith,  supra,  per  Chancellor  Kent. 

3  Watson  V.  Church,  3  Hun  (N.  Y.),  80  (1874) ;  Lathrop  v. 
Heacock,  4  Lans.  (N.  Y.)  1  (1871):  White  v.  Coulter,  3  T.  &  C. 
(N.  Y.)  608  (1874) ;  Watson  v.  Church,  5  id.  243  (1875) ;  Mills  v. 
Van  Voorhies,10  Abb.  (N.  Y.)  152  (1859) ;  McArthur  v.  Franklin, 
15  Ohio  St.  485  (1864). 


SERVICE    OF    SUMMONS    ON    WIFE    IN    NEW    YORK.        107 

It  is  believed  that  this  practice  has  been  changed  in 
New  York  by  the  Code  of  Civil  Procedure.  There  is 
some  conflict  of  opinion  in  the  reported  cases  as  tu  the 
interpretation  of  §  450,'  but  the  latest  decisions  indicate 
that  the  summons  must  be  served  upon  the  wife,  and 
that  service  upon  her  husband  alone  is  not  sufficient.' 
In  a  case  in  Maryland,  a  summons  was  directed  to  the 
wife,  but  not  served  upon  her ;  the  court  said  that  as  she 
had  a  potential  right  of  dower,  and  was  not  within  its 
jurisdiction,  she  was  not  affected  by  the  action  f  and  in 
another  case,  where  a  husband  appeared  and  confessed 
a  bill  for  the  foreclosure  of  a  mortgage  executed  by  him- 
self and  wife,  the  wife  was  held  not  bound  by  the  de- 
cree, as  she  did  not  appear  in  person  and  no  summons 
was  issued  against  her.^  Under  the  old  practice,  too, 
the  wife  could  not  appear  separately  and  on  her  own 
account  in  an  action  to  cut  off  her  inchoate  dower, 
without  leave  of  the  court ;  now,  however,  there  is  no 
question  but  that  the  wife  of  the  owner  of  the  equity 
of  redemption  may  appear  and  defend  in  her  own 
name  and  by  her  own  attorney,  as  though  she  were  a 
feme  sole.''     After  the   death   of  the  husband,    service 

1  Old  New  York  Code,  §  114. 

2  White  V.  Coulter,  59  N.  Y.  629  (1874),  modifyino-  1  Hun, 
357  (1874).  See  Weil  v.  Martin,  24  Hun  (N.  Y.),  645  (1881); 
Hubbell  V.  Sibley,  5  Lans.  (N.  Y.)  51  (1871).  In  Nortlirup  v. 
Wheeler.  43  How.  (N.  Y.)  122,  123  (1872),  the  foreclosure  was 
by  advertisement,  and  service  uj)on  the  wife  was  held  indispen- 
sable under  the  statute.     See  also  the  cases  cited  below, 

3  Hurtt  V.  Crane,  36  Md.  29  (1872). 
^  Pope  V.  North,  33  III.  440  (1804). 

•'■'  Janinski  v.  Heidelberg,  21  Hun  (N.  Y.),  439  (1880); 
Muser  v.  Miller,  3  Civ.  Pro.  Rep.  (N.  Y.)  394  (1883) ;  S.  C,  65 
How.  (N.  Y.)  286  (1883) ;  Throoi)'s  Code,  page  440 ;    New  York 


108  PARTIES    TO    MORTGAGE    FORECLOSURES. 

of  the  summons  or  notice  upon  the  widow  is  indispen- 
sable/ 

§  46.  Wife  of  mortgagor  or  owner  of  equity  of  redemption 
not  necessary  in  those  states  where  the  common- 
la^v  doctrine  of  dow^er  has  been  changed. 

In  those  states  where  statutes  have  been  enacted 
which  completely  sever  the  husband  and  wife,  and 
make  them  independent  of  each  other,  as  to  their 
rights  in  real  property,  the  wife  is  not  a  necessary  party 
to  an  action  to  foreclose  a  mortgage  upon  her  husband's 
property,  even  though  she  signed  the  mortgage.'-  The 
reason  of  this  rule  is,  that,  as  she  has  no  interest 
whatever  in  her  husband's  real  estate,  she  can  have  no 
interest  whatever  in  an  action  affecting  it.  In  North 
Carolina  the  husband  has  absolute  dominion  over  his 
land  during  his  life,  and  can  give  a  perfect  conveyance 
of  it  without  the  consent  of  his  wife ;  in  that  state, 
therefore,  the  wife  is  not  a  necessary  party  to  the  fore- 
closure of  a  mortgage  against  her  husband's  property.^ 
But  if  the  wife  has  signed  the  bond  or  instrument  of 
indebtedness,  charging  herself  with  its  payment,  and  a 
personal  judgment  for  deficiency  is  sought  against  her, 
she  is  a  necessary  party  for  that  purpose.* 

Code,  §  450  ;  Fitzgerald  v.  Quaini,  1  Civ.  Pro.  Rep.  (N.  Y.)  278 
(1881) ;  8.  C,  lb.  279 ;  Fitzsimous  v.  Harrington,  lb.  360  ;  co7itra, 
Fitzgerald  v.  Qtiann,  lb.  273. 

1  King  V.  Diintz,  11  Barb.  (N.  Y.)  191  (1851).  See  §  44,  ante, 
and  the  cases  cited. 

-  Miles  V.  Smith,  22  Mo.  502  (1856) ;  Thornton  v.  Pigg,  24  id. 
249  (1857) ;  Powell  v.  Ross,  4  Cal.  197  (1854) ;  Etheridge  v.  Ver- 
noy,  71  N.  C.  Rep.  185  (1874).  See  Stevens  v.  Campbell,  21  Ind. 
471  (1863). 

■^  Etheridge  v.  Vernoy,  71  N.  C.  Rep.  185  (1874). 

^  See  §§  96  and  97,  post. 


WHEN  HUSBAND  A  NECESSARY  PARTY.        109 

§  47.  The  husband  of  a  mortgagor  -who  is  a  married  -woman, 
having  a  separate  estate,  generally  not  necessary. 

In  most  states  where  the  common-law  doctrine  of 
curtesy  remains  unmodified  by  statute,  a  husband  who 
joins  with  iiis  wife  in  executing  a  mortgage  on  her 
separate  real  property  is  not  a  necessary  defendant, 
if  the  sale  in  the  action  to  foreclose  takes  place 
during  the  wife's  Hfe-time.^  Neither  by  common-law 
nor  the  statute  of  any  state  does  a  husband  have  any 
interest  in  his  wife's  real  property  until  her  death.  This 
is  the  general  rule ;  but  in  some  states  the  husband  is 
deemed  a  necessary  party,  owing  to  statutory  enact- 
ments and  the  special  rules  of  their  courts.-  Four 
things  are  requisite  to  an  estate  by  curtesy,'^  to  wit : 
marriage,  actual  seisin  of  the  wife,  issue,  and  the  death 
of  the  wife ;  and  in  New  York  the  wife  must  die  intes- 
tate. Upon  the  death  of  the  wife  intestate,  after  the 
accomplishment  of   these  four  requisites,  the    husband 

1  Trustees  of  Jones  Fund  v.  Roth,  18  Wk.  Dig.  (N.  Y.)  459 
(1883),  citing  the  statutes,  and  explaining  the  legal  reasons  for 
tfie  rule;  contra,  Jones,  §  1424. 

2  The  husband  has  been  held  a  necessary  party  in  the  follow- 
g  cases  :  Andrews  v.  y wanton,  81   Ind.  474  (1882)  ;  Hilton  v. 

Lothrop,  46  Me.  297  (1858) ;  Wolf  v.  Banning,  8  Minn.  202 
859);  Ya.^-er  v.  Merkle.  26  id.  429  (1880).  Landon  v.  Burke, 
36  Wis.  378  (1874),  cites  a  statute  making  the  husband  a  necessary 
party  ;  Mavrich  v.  Grier,  3  Nev.  32  (1867).  In  some  states  a 
mortgage  executed  by  a  married  woman  upon  her  separate  real 
estate  is  void,  unless  her  husband  joins  in  its  execution  ;  in  these 
states  he  is  of  course  a  necessary  party  to  a  foreclosure.  Weed 
Sewing  Mach.  Co.  v.  Emerson,  115  Mass.  554  (1874).  ISee  the 
Mass.  Laws  of  1874.  chap.  184  ;  Harrison  v.  Brown,  16  Cal.  287 
(1860) ;  Camden  v.  Vail,  23  id.  633  (1863) ;  Black  v.  Galway,  24 
Penn.  18  (1854).  See  the  New  York  act  of  1848  ;  also  §  43,  ante, 
and  the  second  note  to  the  section. 
■^  4  Kent,  29. 


110  PARTIES    TO    MORTGAGE    FORECLOSURES. 

becomes  a  necessary  defendant  in  order  to  cut  off  his 
curtesy  and  to  perfect  the  title/ 

In  those  states  where  statutes  have  made  wholly 
separate  and  independent  of  each  other  the  respective 
estates  of  a  husband  and  a  wife,  the  husband  has  no 
right  to  curtes}^  nor  to  any  other  interest  in  his  wife's 
real  propertj^  and  is  consequently  not  a  necessary  part}^, 
so  far  as  the  title  is  concerned.  If,  however,  he  has 
obligated  himself  for  the  indebtedness  by  signing  a  note 
or  bond,  he  is  a  necessary  party  if  a  personal  judgment 
for  a  deficiency  is  sought  against  him.'- 

§  48.  Heirs  of  mortgagor  or  owner  of  the  equity  of  redemp- 
tion necessary. 

The  heirs''  of  a  mortgagor  or  person  who  dies  seized 
of  the  equity  of  redemption  in  mortgaged  premises  are 
as  necessarj^  parties  to   a  foreclosure   as  the  deceased 

1  Leggett  V.  McClelland,  89  Ohio,  624  (1883) ;  Foij-al  v.  Pirro, 
10  Bosw.  (N.  Y.)  100  (1862). 

-  Bnildiiier,  Loan  &  kSaviiigs  Assoc,  v.  Camnian,  11  N.  J.  Eq. 
(3  8tockt.)  382  (1857) ;  Tbomtoji  v.  Pigg,  24  Mo.  249  (1857);  Rid- 
dick  V.  Walsh,  15  id.  519,  538  (1852).     See  i<i^  92  and  93,  post. 

3  Willianiso!!  v.  Field,  2  8andf'.  Ch.  (N.  Y.)  533  (1845); 
Bigelow  V.  Bush,  6  Paiije  (N.  Y.),  345  (1837) ;  Leonard  v.  Morris, 
9  id.  90  (1841);  WoodV.  Moreliouse,  1  Lans.  (N.  Y.)  405  (1869); 
Kiernan  v.  Blackwell,  27  Ark.  235  (1871);  Pillow  v.  Sentelle,  39 
id.  61  (1883);  Brown  v.  Orr,  29  Cal.  120  (1865) ;  Burton  v.  Lies, 
21  id.  87,91  (1862);  Pritchard  v.  Elton,  38  Conn  434  (1871); 
Biitton  V.  Hunt,  9  Kan.  228  (1872);  Brenner  v.  Bigelow,  8  id. 
496,  504  (1871);  Abbott  v.  Godfroy's  Heirs,  1  Midi.  178  (1849), 
per  Miles,  J.,  collating  and  reviewing  the  authorities.  Duval  v. 
McCloskey,  1  Ala.  70S  (1840)  ;  Erwin  v.  Ferguson,  5  id.  158 
(1843)  ;  Hunt  v.  Acre,  28  id.  580  (1856) :  Lane  v.  Erskine,  13  111. 
501  (1851\  approved  and  followed  in  Harvey  v.  Pius,  14  id.  217 
(18.52);  tSlaughter  v.  Foust,  4  Blackf.  (Ind.)  379  (1837) ;  Shaw  v. 
Hoadley,  8  id.  165  (1846);  Ts'ewkirk  v.  Burson,  21  Iiid.  129 
(1863) ;  McKay  v.  Wakefield,  63  id.  27  (1878)  ;  White  v.  Ritt- 
niyer,  30  Iowa,  268,  272  (1870),  citing  many  cases  and  authorities  ; 


HEIRS    OF    MORTGAGOR    NECESSARY.  Ill 

mortgagor  or  owner  would  have  been,  if  the  action  had 
been  brought  in  his  life-time,  as  they  succeed  by 
operation  of  law^  under  the  statute  of  descent  to  the  en- 
tire interest  of  the  decedent  in  the  property,  the  same 
as  a  purchaser  would  succeed  to  such  interest  by  grant. 
It  is  not  sufficient  to  make  the  personal  representatives 
of  the  deceased  owner  alone  defendants,'  except  in  cases 
of  foreclosure  by  advertisement.-  The  guardian  of  an 
infant  heir  is  not  a  necessary  party,  but  the  infant  must 
be  made  a  defendant,  and  the  process  of  the  court  must 

Smith  V.  Mainnng-.  9  Mass.  422  (1812);  Barrett  v.  Cochran,  8 
Rich.  (S.  C.)  48  (1875);  Williams  v.  Beard,  1  id.  809  (1869); 
(xeorge  v.  Cooper,  15  W.  Va.  ijQ>3  (1880);  Houy-htoii  v.  Mariner, 
7  Wis.  244  (1858)  ;  Stark  v.  Brown,  12  id.  572  (18(30).  See  the 
statute  of  1842;  Zae^el  v.  Knster,  51  Wis.  31  (18^1),  explaining 
the  statute  of  1860,  chap.  'S{5o  ;  Denison  v.  League,  16  Tex.  o99, 
409  (1856);  Averett  v.  Ward,  1  Busbee's  Eq.  (N.  C.)  192  (1853). 
In  Indiana  the  widow  is  made  an  heir  by  statute,  and  is  a  neces- 
sary party.  See  Fletcher  v.  Holmes,  32  lud.  497,  510  (1870),  and 
the  cases  cited.  A  sale  lias  been  held  wholly  void  for  the  omission 
of  the  heirs.  Kenshaw  v.  Taylor,  7  Or.  31 5  (1879);  Shiveley's 
Adm's  V.  Jones,  6  B.  Mon.  (Ky.)  274  (1845).  In  Massachusetts, 
where  there  is  a  tenant  in  })Ossession  on  whom  to  serve  the  pro- 
cess, the  heirs  are  not  necessary  parties.  Shelton  v.  Atkins,  22 
Pick.  (Mass.)  71  (1839).  The  heii's  of  a  sub-vendee  are  necessaiy 
defendants  in  the  foreclosure  of  a  land  contract,  Batre  v.  Auze's 
Heirs,  5  Ala.  173  (1843). 

1  Stark  V.  Brown,  12  Wis.  572  (1860).  See  the  statute  of  1842, 
referred  to;  Zaegel  v.  Kuster,  51  id.  31  (IS'^l).  In  Missouri  the 
heirs  are  by  statute  not  necessary  parties,  Perkins  v.  Wood,  27 
Mo.  Rep.  547(1858);  Code  of  1845.  See  Dixon"s  Adm's  v  Cuyler's 
Adm's,  27  Ga.  248  (1859),  holding  the  ])ersonal  representatives 
instead  of  the  heirs  necessary  parties.     See  §  51,  i:ost. 

-  Low  V.  Purdy,  2  Lans.  (N.  Y.)  424  (1869);  Mackenzie  v. 
Alster,  64  How.  (N.  Y.)  388  (1882).  See  g  51,  post,  and  the  cases 
cited  in  the  last  para,y-raph.  In  IlliTiois,  in  a  foreclosure  by  scire 
facias,  it  has  been  held  sufficient  under  the  statute  to  make  either 
the  heirs,  or  the  executoi\s  or  administrators  parties.  Rockwell  v. 
Jones,  21  111.  279  (1859);  John  v.  Hunt,  1  Blackf.  (Ind.)  324 
(1824). 


1  1 2  PARTIES    TO    MORTGAGE    FORECLOSURES. 

be  personally  served  upon  him.^  In  reviving  a  foreclosure 
commenced  against  a  deceased  mortgagor  in  his  life-time, 
his  heirs  are  necessary  parties  in  order  to  produce  a  perfect 
title.  Thus,  a  grantor  died  during  the  pendency  of  an 
action  in  the  nature  of  a  foreclosure,  for  an  accounting 
and  sale  of  the  premises,  brought  upon  a  deed  given  to 
secure  an  advance  of  money  ;  and  the  suit  having  been 
revived  against  his  administrator  alone,. a  bidder  at  the 
sale  was  relieved  of  his  bid  on  the  ground  that  the  title 
offered  was  defective,  the  heirs  having  been  omitted  as 
defendants.^  The  general  principles  of  law  that  have 
been  previously  stated  as  rendering  a  mortgagor  or  an 
owner  of  the  equity  of  redemption  by  purchase  a  neces- 
sary party,  are  equally  applicable  to  the  heirs  at  law  of 
such  a  mortgagor  or  owner;^ 

If  the  mortgagor  parted  in  his  life-time  with  the 
equity  of  redemption,  his  heirs  at  law  are  not  necessary 
parties;^  but  where  the  mortgagor  at  his  decease  still 
holds  an  equitable  interest  in  the  equity  of  redemption, 
his  heirs,  succeeding  to  his  identical  rights,  will  or  will 
not  be  necessary  parties  according  to  the  rules  of  law 
previously    stated;^     If  a  judgment    for    deficiency    is 

1  Alexander  v.  Frary,  9  Ind.  481  (1857) ;  Moore  v.  Starks, 
1  Ohio  St.  369  (1853).     See  the  New  York  Code,  §  426. 

2  Dodd  V.  Neilson,  90  N.  Y.  243  (1882).  In  Givens'  Adm'rs  v. 
Daveiiportj  8  Tex.  451  (1852),  the  heirs  of  a  mortgagor  who 
died  pending  the  foreclosure  were  held  not  necessary  parties  in 
revivinjj-  it ;  aliter  where  the  action  was  connnenced  against  the 
personal  representatives  after  the  death  of  the  mortgagor. 

3  Qgg  S  38   cintG. 

-t  Dalv  V. 'Burc'hall,  13  Abb.  N.  S.  (N.  Y.)  264,268  (1872). 
In  point,  Wilkins  &  Hall  v.  Wilkins,  4  Port.  (Ala.)  245  (1837)  ; 
Medlev  v.  Elliott,  62  111.  5S2  (1872) ;  Hibernia  Savings  Society 
V.  Herbert,  53  Cal.  375  (1879).     See  §  35,  ante, 

■'  See  §§  36  and  37,  cmte. 


HEIRS    OF    MORTGAGOR    NECESSARY.  113 

sought  against  the  estate  of  a  deceased  mortgagor,  or  of 
a  deceased  purchaser,  who  has  duly  assumed  the  pay- 
ment of  the  mortgage  debt,  the  legal  representatives  of 
the  decedent  are  necessary  parties  for  that  purpose ;  ^ 
but  they  are  not  necessary  parties  for  the  purpose  of 
foreclosing  the  title.'-  The  reason  for  tliis  is,  that  in 
most  states  the  executors  and  administrators,  or  legal 
representatives,  of  a  deceased  person  receive  no  title  or 
interest  in  the  land.  In  those  states,  hoAvever,  where 
the  real  as  well  as  the  personal  property  passes  into  the 
hands  of  executors  or  administrators,  they  are  neces- 
sary parties  to  a  foreclosure  in  the  place  of  the  heirs, 
who  are  then  not  necessary  parties ;  •'  and  in  statutory 
foreclosures  by  advertisement  in  New  York  the  personal 
representatives  are  indispensable  parties.*  If  the  heirs, 
or  any  of  them,  are  omitted  as  parties,  any  defendant 
interested  in  the  action  may  object  by  demurrer,  if  the 
defect  appears  upon  the  face  of  the  complaint,  or  by 
answer,  and  compel  such  omitted  heir  to  be  made  a 
party."^ 

Where  the  decedent  leaves  a  will,  devising  the  equity 
of  redemption  in  mortgaged  premises,  the  devisees  and 
beneficiaries  become  necessary  parties  instead  of  the 
heirs  at  law."  As  the  probate  of  a  will  of  real  estate 
may  be  impeached "  within  a  limited  time,  it  is  proper, 
and  may  be  necessary   under  certain   circumstances,  to 

1  See  §§  98  and  99,  pos/. 

2  Le-onard  v.  Morris,  9  Paige  (N.  Y.),  90  (1841). 

3  Harwood  v.  Marys,  8  Cal.  580  (1857). 

^  8ee  §  51,  post,  the  last  paragraph,  and  the  cases  cited. 
•''  tSee  §  38,  ante. 

^  See  §  49,  pout,  on  devisees;  Hunt  v.  Acre,  28  Ala.  580  (1856), 
^  New  York  Code,  §  2627. 
8 


114  PARTIES    TO    MORTGAGE    FORECLOSURES. 

make  the  heirs  at  law  also  parties.     The  plaintiff  omits 
them  at  the  risk  of  their  subsequently  redeeming. 

Where  the  title  to  mortgaged  premises  is  conveyed  to 
a  man  and  his  wife  as  tenants  by  the  entirety/  or  is 
held  jointly  by  partners  or  others,  the  heirs  of  one  of 
the  deceased  joint  owners  are  not  necessary  parties  to 
cut  off  the  equity  of  redemption  and  to  perfect  the  title  by 
foreclosure ;  if,  however,  the  deceased  joint  owner  signed 
the  bond  or  became  in  any  way  liable  for  the  mortgage 
debt,  his  legal  representatives  are  proper  parties  for  the 
purpose  of  obtaining  a  judgment  of  deficiency  against 
his  estate.  The  reason  for  this  rule  is  based  on  the 
common-law  doctrine  of  survivorship,  by  which  the 
entire  title,  upon  the  death  of  any  of  the  joint  owners, 
vests  in  the  survivors. - 

§  49.  Devisees  of  mortgaged  premises  necessary. 

We  have  already  seen  that  when  the  title  to  mort- 
gaged premises  devolves  upon  heirs  at  law  under  the 
statute  of  descent,  they  are  necessary  parties  to  a  fore- 
closure. A  testator  is  authorized  by  statute  to  make  a 
will,  superseding  the  statute  of  descent  in  the  disposi- 
tion of  his  property.  Following  the  analogy  of  the 
rule  which  makes  an  heir  a  necessary  party,  the  person 
or  devisee  to  whom  the  testator  passes  the  title  of  his 
mortgaged  premises  by  will  is  also  a  necessary  party  to 
foreclose  the  equity  of  redemption,  as  he  becomes  the 
owner  of  the  same.'^     A  mortgage  executed  by  a  devisee 

1  Bertles  v.  Nunan,  92  N.  Y.  152  (1883).  See  §  38,  cmte,  the 
last  paragraph. 

2  4  Kent,  p.  360,  12th  ed.  (Hohues"). 

3  Nodine  v.  Greenfield,  7  Paige  (N.  Y.),  547  (1839);  Leggett 
V.  Mut.   Life  Ins.  Co.,  (J4  Barb.  (N.  Y.)  36  (1872);  Robinson  v. 


DEVISEES    OF    MORTGAGED    PREMISES    NECESSARY.        115 

upon  lands  received  by  will,  is  always  subject  to  equities 
existing  against  the  premises  at  the  time  of  the  testator's 
death.^  If  the  entire  title  to  the  premises  is  devised, 
the  heir,  of  course,  is  not  a  necessary  party,  as  he  has 
no  interest  in  the  property/  As  a  surrogate's  decree, 
admitting  a  will  of  real  estate  to  probate,  is  only  pre- 
sumptive evidence  of  the  matters  adjudged  in  the 
decree,  and  the  probate  of  the  will  may  be  impeached 
within  a  limited  time,  the  heirs  at  law  may,  during 
such  time,  become  necessary  defendants,^  and  they  ought 
not  to  be  omitted  from  the  action  if  any  of  them  dispute 
the  validity  of  the  will.  Until  a  decree  is  made,  admit- 
ting a  will  to  probate,  the  heirs  are  necessary  -parties  ; 
and  it  is  believed  that  the  devisees  are  also  necessary. 
It  is  suggested  that  in  such  a  case  the  rule  of  law  may  be 
applied  which  renders  both  the  vendee  and  the  vendor 
in  a  land  contract  of  mortgaged  premises  necessary 
parties.^ 

§  50.  Legatees  and  annuitants  necessary. 

A.  legacy  or  an  annuity  charged  by  a  will  upon  mort- 
gaged premises  is  a  specific  lien  upon  the  same,  as 
though  the  decedent  had   mortgaged   or  otherwise   in- 

Robitison,  1  Laris.  (N.  Y.)  117  (1869);  kSaiulersou  v.  Edwards, 
111  Mass.  335  (1873) ;  Savings  &  Loan  Society  v.  Glbbs,  21  Cal. 
595  (1863).  It  matters  not  whether  the  devise  is  absolute  or  in 
trust;  Coles  V.  Forrest,  10  Beav.  (Eng.)  552  (1847);  Graham's 
Exec'rs  v.Carter,  2  Hen.  &  M.  (Va.)  6  (1807) ;  Mavo  v.  Tomkies, 
6  Munf.  (Va.)  520  (1820). 

^  Simons  v.  Bryce,  10  Rich.  (S.  C.)  354  (1878). 

-'  Macclesfield  v.  Fitton,  1  Vern.  (Euif.)  168  (1683);  Lewis  v. 
Nancrle,  2  Ves.  Sen.  (Eng.)  431  (1752);  S.  C,  Ambl.  150. 

■'  New  York  Code,  ^  2627.  See  the  lueceding  section:  exactly 
in  point,  Hunt  v.  Acre,  28  Ala.  580  (1856). 

'^  See  §  37,  ante. 


116  PARTIES    TO    MORTGAGE    FORECLOSURES. 

cumbered  the  equity  during  his  life-time  ;  and  the  bene- 
ficiary of  such  a  legacy  or  annuity  is  an  indispensable 
party  in  an  action  to  foreclose.^  It  seems,  however, 
where  a  legacy  is  made  generally  from  the  estate,  and 
not  charged  specifically  upon  the  mortgaged  premises, 
that  the  legatee  is  not  a  necessary  party  ;  but  such  a 
legatee  may  become  an  indispensable  party  if  there  is 
an  insufficiency  of  personal  property  to  pay  the  legacy,'^ 
and  it  becomes  necessary  to  resort  to  the  mortgaged 
premises  to  produce  a  fund  to  pay  it. 

§  51.  Executors  and  administrators  generally  not  neces- 
sary. 

In  New  York  and  many  other  states  the  administrator 
of  a  person  who  dies  seized  of  an  equity  of  redemption 
is  not  a  necessary  party  defendant  to  a  foreclosure,'^  ex- 
cept where  the  action  is  commenced  during  the  pen- 
dency of  a  proceeding  in  a  probate  court  to  sell  the 
decedent's  equity  of  redemption  to  pay  his  debts.* 
The  reason  for  this   rule  is,  that  administrators  have 

1  Hebron  Society  v.  Schoen,  60  How.  (N.  Y.)  185  (1880) ;  Mc- 
Gown  V.  Yerks,  6  Johns.  Ch.  (N.  Y.)  450  (1822);  Bachelor  v. 
Middleton,  6  Hare  (Eng.),  75  (1847). 

-  Hebron  Society  v.  Schoen,  supra. 

^  For  the  JNew  Y'ork  cases  see  §  48,  ante.  Dodd  v.  Neilson,  90  N. 
Y.  243  (1882),  hekl  that  it  was  not  sufficient  to  make  the  personal 
representatives  defendants ;  the  heirs  were  also  necessary.  Wil- 
kins  V.  Wilkius,  4  Port.  (Ala.)  245  (1837) ;  Judge  v.  Boardman, 
2  Ala.  381  (1841) ;  Erwin  v.  Ferguson,  5  id.  158  (1843) ;  but  held 
necessary  in  Doolev  v.  Yillalonga,  61  id.  129  (1878) ;  Rockwell  ^. 
Jones,  21  111.  279  (1859) ;  Bissell  v.  Marine  Co.  of  Chicago,  55  id. 
165  (1870)  ;  Trapier  v.  Waldo,  16  S.  C  276  (1883) ;  Houghton  v. 
Mariner,  7  Wis.  244  (1858) ;  Stark  v.  Brown,  12  id.  572  (1860). 
The  personal  representative  of  a  deceased  joint  mortgagor  should 
not  be  made  a  party,  according  to  Martin  v.  Harrison,  2  Tex. 
456  (1847) ;   Wiley  v.  Pinson,  23  id.  486  (1859). 

*  New  York  Code,  §§  2749,  2797,  2798. 


LEGAL  REPRESENTATIVES  NOT  NECESSARY.      117 

no  interest  in  the  real  estate  of  a  decedent.^  Neither 
are  executors  necessary  parties,  unless  their  office 
is  coupled  with  an  interest  in  the  property  by  trust, 
power  of  sale  or  otherwise.  In  a  few  states,  personal 
representatives  are  held  indispensable'-  parties  defend- 
ant, while  a  majority  of  the  decisions  indicate  that  it  is 
a  proper  and  advisable  p  ractice  always  to  bring  before 
the  court  the  legal  representatives  of  a  deceased  owner 
of  an  equity  of  redemption."^ 

1  Willard  v.  Nason,  5  Mass.  240  (1809).     See  §  48,  ante. 

-  In  Missouri  a  statute  makes  it  sufficient  to  bring  the  personal 
representatives  into  the  action  ;  Riley's  Adm'rs  v.  McCorcl's 
Adm'rs,  21  Mo.  Rep.  285  (1855) ;  S.  C,  24  id.  265  (1857) ;  Miles 
V.  Smith,  22  id.  502  (185H),  holding  the  personal  representatives 
indispensable  ;  Cadwallader  v.  Cadwallader,  26  id.  76  (1857) ;  Per- 
kins V.  Wood,  27  id.  547  (1858) ;  Randolph  v.  Widow,  etc.,  of 
Chapman,  21  La.  Ann.  486  (1869).  See  Dixon  v.  Cuyler,  27  Ga.  248 
(1859),  holding  the  heirs  not  necessary  parties.  Hall  v.  Musler,  1 
Disney  (Ohi'o),  26  (1855).  In  Biggerstoff  v.  Loveland,  8  Ohio 
Rep.  44  (1887),  it  was  held  sufficient  to  make  the  personal  repre- 
sentatives parties  defendant  on  the  ground  that  the  statute  reads, 
"heirs,  executors  or  administrators."  See,  also,  Heighway  v. 
Pendleton,  15  Ohio  Rep.  7.-!5,  749,  758  (1846),  where  it  was  held 
that  the  statute  of  1807  made  the  equity  of  redemption  a  "  chat- 
tel descendible  "  to  the  personal  representatives,  and  not  to  the 
heirs.  Massie's  Heirs  v.  Donaldson,  8  Ohio  Rep.  377  (1838); 
Wallace  v.  Holmes,  40  Penn.  427  (1861),  citing  the  statute  ;  Hun- 
secker  v.  Thomas,  89  id.  154  (1879) ;  Mebane  v.  Mebane,  80  N. 
C.  Rep.  38  (1879),  distinguishing  and  ruling  contrary  to  Averett 
V.  Ward,  1  Busbee's  Eq.  (N.  C.)  192  (1853) ;  Gibbes  v.  Holmes, 
10  Rich.  Eq.  (S.  C.)  484,  493  (1859) ;  Wright  v.  Eaves,  lb.  582; 
Bryce  v.  Bowers,  11  id.  41  (1859).  See  Trapier  v.  Waldo,  16  S. 
C.  276  (1883),  apparently  overruling  these  cases.  In  Texas  it 
has  been  held  necessary  under  a  statute  to  present  the  claim  on 
the  mortgage  to  the  personal  representatives  before  foreclosing ; 
Graham  v.  Vinning,  1  Tex.  639  (1847);  the  remedy  against  the 
mortgagor's  estate  must  be  pursue^i  in  the  probate  court.  Lim- 
ited in  Cole  V.  Robertson,  6  Tex.  356  (1851),  to  the  effect  that  a 
foreclosure  in  rem,  but  not  an  action  m  personam,  can  be  maintained 
without  a  previous  demand  on  the  personal  re})resentatives. 

^  Personal  representatives  are  held  proper  parties  in  Brenner 
V.  Bigelow,  8  Kan.  498,  504  (1871) ;  Fallon  v.  Butler,  21  Cal.  24 


118  PARTIES    TO    MORTGAGE    FORECLOSURES. 

In  the  statutory  foreclosure  of  mortgages  by  adver- 
tisement in  New  York,  the  rule  is  fixed  and  absolute 
that  the  notice  must'be  served  upon  the  "  mortgagor,  or, 
if  he  is  dead,  upon  his  executor  or  administrator;''  ^  it  is 
not  required  to  be  served  upon  the  heirs  or  devisees. 
If  no  personal  representatives  have  been  appointed, 
foreclosure  by  advertisement  cannot  be  maintained.- 

§  52.  Trustees  holding  an  interest  of  "whatever  kind  in 
mortgaged  premises  for  beneficiaries  necessary. 

Whenever  the  title  to,  or  an  interest  in,  mortgaged 
premises  is  passed  to  a  person  in  trust  for  specific  pur- 
poses, for  the  benefit  of  other  persons,  the  trustee  is 
always  a  necessary  party  to  a  foreclosure  in  order  to 
cut  off  the  entire  equity  of  redemption.  The  reported 
cases  are  almost  without  an  exception  in  sustaining 
this  proposition,  no  matter  what  the  character  or  pur- 
pose of  the  trust.^     Though  none  of  the  cases  state  the 

(1862) ;  Savings  and  Loan  Society  v.  Gibbs,  lb.  595  (1863) ;  Bar- 
ton V.  Lies,  lb.   87  (1862)  ;  Darlini^ton  v.  Effey,    lo  Iowa,  177 
"  (1862). 

1  Cole  V.  Moffitt,  20  Barb.  (N.  Y.)  18  (1854) ;  Anderson  v. 
Austin,  34  id.  319  (1861);  Hornby  v.  Cramer,  12  How.  (N.  Y.) 
490(1855) ;  Low  v.  Purdy,  2  Lans.  (N.  Y.)  424  (1869) ;  2  R.  S. 
545 ;  Laws  of  1844,  chap.  346  ;  New  York  Code,  §  2388,  sub- 
div.  4. 

2  Mackenzie  v.  Alster,  64  How.  (N.  Y.)  388  (1882) ;  S.  C,  12 
Abb.  N.  C.  (N.  Y.)  110.  Boardman,  J.,  queries,  in  Van  Schaack 
V.  Sanders,  32  Hun  (N.  Y.),  515  (1884),  S.  C,  19  Week.  Dig.  (N. 
Y.)  170,  whether  service  on  a  devisee  is  not  sufficient  where  the 
executors  have  not  qualified. 

■'  Williamson  v.  Field's  Ex'rs,  2  Sandf.  Ch.  (N.  Y.)  533,  563 
(1845) ;  King  v.  McVicker,  3  id.  193  (1846) ;  Christie  v.  Herrick, 
1  Barb.  Ch.  (N.  Y.)  254  (1845);  Paton  v.  Murrav,  6  Paiye  (N. 
Y.),  474  (1837) ;  Nodine  v.  Greenfield,  7  id.  547  (l'839) ;  Grant  v. 
Duane,  9  Johns.  Rep.  (N.  Y.)  591  (1812) ;  Case  v.  Price,  9  Abb. 
(N.  Y.)  Ill  (1859);  Le^^gett  v.  Mutual  Ins.  Co.,  64  Barb.  (N.  Y.)  38 
(1872) ;  Bard  v.  Poole,"l2  N.  Y.  495  (1855) ;  Toole  v.  McKiernan, 


TRUSTEES  NECESSARY  DEFENDANTS.         119 

reason  for  this  principle,  it  is  believed  that  it  is  based 
upon  the  flict  that  all  trustees  are  held  accountable  and 
responsible  by  the  courts  for  the  performance  of  their 
trusts,  and  that  without  being  made  parties  they  would 
have  no  opportunity  to  be  heard  in  an  action  which 
affected  the  subject  of  their  trust.  Even  though  the 
trust  were  not  coupled  with  an  interest,  there  might  be 
latent  equities  which  would  impair  the  title  offered 
at  a  foreclosure  sale  if  the  trustee  were  omitted  as  a 
party  defendant.  It  is  specially  necessary,  and,  in  fact, 
indispensable,  to  make  a  trustee  of  an  express  trust,  or 
one  who  has  an  interest  coupled  with  a  trust,  a  party.^ 
Trusts  created  by  wills  are  so  various  in  character  and 
often  approach  so  near  a  mere  power,  that  each  case 
must  be  judged  by  itself  as  it  arises ;  and  this  is  notably 
true  when  it  is  remembered  that  the  common-law  theory 
of  trusts  and  the  statute  enactments  of  the  various 
states  respecting  them  are  so  complicated  and  intricate.^ 
The  trustee  must  be  made  a  party  in  his  representative, 
and  not  in  his  individual,  capacity.^ 

48  Supr.  Ct.  (N.  Y.)  163  (1882) ;  Walsh  v.  Truesdale,  1  Bradwell 
111.  App.  126  (1877)  ;  Clark  v.  Reyburn,  8  Wal.  (U.  H.)  318 
(1868);  Fisher  on  Mortgages,  §§  365,  367;  Walton  v.  Jones,  2 
Y.  &  C.  C.  C.  (Eng.)  244  (1843).  The  heirs  at  law  of  a  trustee  are 
not  necessary  parties  ;  N.  &  C.  Brid^-e  Co.  v.  Douglass,  12  Bush 
(Ky.),  719  (1877).  See  Gardner  v.^Brovvn,  21  Wal.  (U.  S.)  36 
(1874),  where  the  trustee  had  not  filed  a  required  bond. 

1  In  Case  v.  Price,  17  How.  (N.  Y.)  348  (J  859),  it  was  held 
that  when  no  estate,  legal  or  equitable,  vested  in  the  trustee,  he 
was  not  a  necessary  party  ;  allter  when  the  trustee  takes  any 
interest  in  the  property.     See  the  cases  cited  supra. 

2  Nodine  v.  Greenfield,  7  Paige  (N.  Y.),  .547  (1839). 

3  Rathbone  v.  Hooney,  58  N.  Y.  463  (1874). 


120  PARTIES    TO    MORTGAGE    FORECLOSURES. 

§  53.  Cestuis  que  trust  and  beneficiaries  necessaiy. 

The  decisions  of  the  courts  and  the  statutes  of  this 
state  have  long  estabhshed  the  dictum  that  the  cestuis 
que  trust  and  beneficiaries  of  a  trust  are  necessary  de- 
fendants to  a  foreclosure,  in  order  to  cut  off  the  entire 
equity  of  redemption.^  Judge  Story  says :  "  It  will 
not  in  general  be  sufficient  if  the  equity  of  redemption 
is  conveyed  or  devised  to  a  trustee  in  trust,  to  bring  him 
before  the  court ;  but  the  cestuis  que  trust  (the  beneficia- 
ries) should  also  be  made  parties."-  "It  is  conceded  to 
be  the  general  rule,  that  if  the  equity  of  redemption  is 
vested  in  a  trustee  in  trust,  the  cestuis  que  trust  must  be 

^i^Williamsou  v.  Field,  2  Sandf.  Ch.  (N.  Y.)  562  (1845) ;  King 
V.  McVifkar,  3  id.  192  (1846):  Nodine  v.  Greenfield,  7  Paige  (N. 
Y.),  544  (1839) ;  Leggett  v.  Mutual  L.  I.  Co.,  64  Barb.  (N.Y.)  23, 
86  (1872),  reversed  in  part  in  53  N.  Y.  400 ;  Case  v.  Price,  17 
How.  (N.  Y._)  348  (1859) ;  Terrett  v.  Crombie,  6  Lans.  (N.  Y.)  82 
(1872),  modified  in  55  N.  Y.  683 ;  Toole  v.  McKiernan,  48  8apr. 
Ct.  (N.  Y.)  163  (1882).  8ee  Dodd  v.  Neilson,  90  N.  Y.  243,  247 
(1882).  In  Lockman  v.  Reilley,  10  Abb.  N.  C.  (N.  Y.)  351  (1881), 
certain  beneficiaries  were  held  unnecessary  parties  ;  but  in  that 
case  the  equity  of  redemption  had  been  changed  into  personalty 
by  the  terms  of  a  will.  Woolner  v.  Wilson,  5  111.  App.  439  (1880) ; 
Day  V.  Wetherby,  29  Wis.  363  (1872) ;  Clark  v.  Reyburn,  8  Wal. 
<U.  S.)  318  (1868).  8ee  Broward  v.  Hoeg,  15  Fla.  370  (1875),  for 
a  case  where  alleged  beneficiaries  were  held  not  necessary  par- 
ties. In  Johnson  v.  Robertson,  31  Md.  476  (1869),  the  cestui  que 
trust,  being  a  non-resident,  was  held  an  unnecessary  party  ;  her 
interests  were  held  bound  by  a  decree  taken  pro  toufesso  against 
her  trustee.  In  Wood  v.  Nisbit,  20  Ga.  72  (1856),  the  premises 
were  conveyed  to  a  person  as  trustee,  who  executed  a  purchase- 
money  mortgage  as  trustee  ;  the  cestui  que  trust  was  held  not  a 
necessary  party.  Contrary  to  the  text,  see  Fisher,  §  367  et  seq., 
and  the  English  cases,  iSale  v.  Kitson,  17  Jur.  171;  3  De  G.,  M. 
&  G.  119  (1853) ;  Hanman  v.  Riley,  9  Hare  App.  40  (1852) ; 
Goldsmid  v.  iStonehewer,  9  Hare  App.  39  ;  17  Jur.  199  (1852) ; 
Tuder  v.  Morris,  1  8m.  &  Gif.  503  (1853) ;  Cropper  v.  Mellersh,  1 
N.  8.  Jur.  299  (1855).  8ee  Coler  v.  Forrest,  10  Beav.  557  (1847). 
2  8tory's  Eq.  PL,  §§  193-197. 


CESTUIS    QUE    TRUST    NECESSARY    DEFENDANTS.         121 

made  parties  to  the  foreclosure."^  And  even  where  the 
receipt  of  trustees  was  to  discharge  purchasers  from  all 
liability  to  the  beneficiaries,  the  equity  of  redemption 
having  been  conveyed  to  trustees  to  sell  and  divide 
among  persons  specified,  the  cestids  que  trust  were 
held  necessary  parties  to  a  bill  brought  to  foreclose 
the  mortgage.-  The  nature  of  the  trust  should  appear 
on  the  fiice  of  the  instrument  creating  it.  Where  the 
conveyance  does  not  reveal  the  fact  that  it  is  a  trust 
deed,  together  with  the  names  of  the  beneficiaries,  the 
foreclosure  will  produce  a  perfect  title,  and  the  rights  of 
the  cestuis  que  trust  will  be  cut  off,  though  they  are  not 
made  parties  to  the  action.'^ 

As  far  as  the  reported  cases  show,  there  are  only 
two  exceptions  to  the  general  rule  above  stated.  First, 
"  in  cases  of  remote  limitation  of  the  equity  of  redemp- 
tion, in  which,  on  account  of  the  impossibility  of  bring- 
ing in  parties  not  in  esse,  or  not  ascertained,  but  who 
may  ultimately  become  entitled,* it  is  held  sufficient  to 
bring  before  the  court  the  persons  in  esse  who  have  the 
first  estate  of  inheritance,  together  with  the  persons 
having  all  the  precedent  estates  and  prior  interests."^ 
But  where  a  mortgagor  conveyed  his  equity  of  redemp- 

1  Williamson  v.  Field,  2  iSandf.  Ch.  (N.  Y.)  562  (1845),  a  leading 
case,  per  Vice-Chancellor  ISandford.  All  the  books  agree  in 
sustaining  this  proposition.  Story's  Eq.  PL,  §§  198,  194,  207. 
Calvert  on  Parties,  181,  182;  Grore  v.  iStacpoole,  1  Dow's  P.  C. 
(Eng.)  18.   81  (1818),  per  Lord  Eldon.  ^ 

^  Calverley  v.  Phelp,  6  Madd.  (Eng.)  229  (1822). 

3  Brown  v.  Cherry,  38  How.  (N.  Y.)852  (1870);  S.  C,  56  Barb. 
(N.  Y.)  685. 

■*  Williamson  v.  Field,  supra.  Special  attention  is  called  to 
this  case  for  its  learned  and  exhaustive  discussion  of  the  relation 
of  trustees  to  their  cestuis  que  trust,  in  cases  of  mortgage  fore- 
closure. 


122  PARTIES    TO    MORTGAGE    FORECLOSURES. 

tion  to  trustees  in  settlement  for  his  daughter  on  her 
marriage,  out  of  which  she  was  to  receive  an  annuity, 
and  the  trustees  were  to  raise  oat  of  the  same  a  sum  of 
money  for  the  cliikh^en  of  the  marriage,  the  daughter 
and  her  children  were  deemed  necessary  parties  to  a 
suit  for  the  foreclosure  of  the  mortgage.^  Second,  in 
cases  where  the  beneficiaries  are  so  numerous  that  it 
would  be  intolerably  oppressive  to  compel  the  plaintiff 
to  bring  them  all  into  the  action,  it  is  held  sufficient 
to  make  the  trustees  defendants.-  Thus,  in  a  case 
where  real  estate  had  been  purchased  by  a  joint  fund 
raised  by  subscriptions  from  above  two  hundred  and 
fifty  subscribers,  and  the  property  was  conveyed  to  A., 
B.  and  C.  as  trustees,  who  executed  a  purchase-money 
mortgage.  Chancellor  Kent  held  on  the  foreclosure  that 
"  the  trustees  were  selected  in  this  case  to  hold  and 
represent  the  property  for  the  sake  of  convenience,  and 
because  the  subscribers  were  too  numerous  to  hold  and 
manage  the  property  as  a  co-partnership.  The  trus- 
tees are  sufficient  for  the  purpose  of  this  bill,  which  is 
for  a  sale  of  the  pledge  ;  it  would  be  intolerably  oppres- 
sive and  burdensome,  to  compel  the  plaintiff  to  bring  in 
all  of  the  cestids  que  trust.  The  delay  and  the  expense  in- 
cident to  such  a  proceeding  would  be  a  reflection  on  the 
justice  of  the  court.  This  is  one  of  those  cases  in  which 
the  general  rule  cannot  and  need  not  be  enforced  ;  for 
the  trustees  sufficiently  represent  all  the  interests  con- 
cerned ;  they  were  selected  for  that  purpose,  and  we 

1  Anderson  v.  Stather,  L.  J.  (Eq.)  16  vol.  N.  S.  (Eng.)  152 
(1845),  before  ^ir  Kxight  Bruce,  Vice-Chaxcellor. 

2  Van  Vechten  v.  Terry,  2  Johns.  Ch.  (N.  Y.)  197  (1816); 
Christie  V.  Herrick,  1  Barb.  Ch.  (X.  Y.)  254  (1845);  Paton  v. 
Murray,  6  Paige  (N.  Y.),  474  (1837). 


CESTUIS    QUE    TRUST,    WHEN    NOT    NECESSARY.  123 

need  not  look  beyond  them."^  Where  a  trust  is  created 
for  the  benefit  of  numerous  creditors,  the  same  ex- 
planation holds  good,  and  the  creditors  are  not  neces- 
sary parties,  but  may  be  safely  represented  by  the  trus- 
tees f  but  the  beneficiaries  may  properly  be  made  de- 
fendants, if  the  plaintifi"  desires  to  bring  them  into  the 
action.^ 

The  statutes  of  many  states  are  clear  in  declaring 
that  in  cases  of  trusts  made  to  one  or  more  persons  to 
the  use  of  another,  no  estate  or  interest,  legal  or  equi- 
table, shall  vest  in  the  trustee ;  but  that  every  benefi- 
ciary who  by  virtue  of  a  trust  is  entitled  to  the  actual 
possession  of  lands  and  the  profits  thereof,  shall  be 
deemed  to  have  a  legal  estate  therein,  according  to  his 
beneficiary  interest.*  No  court  has  ever  held,  so  far  as 
can  be  ascertained,  that  a  cestui  que  trust  may  be 
omitted  as  a  party  to  a  foreclosure,  except  in  the  two 
cases  already  mentioned.'^  Even  where  a  trustee  exe- 
cuted the  mortgage  under  authority  of  a  court,  it  was 
held  that  the  beneficiaries  were  necessary  parties ;''  the 

1  Van  Vechten  v.  Terry,  2  Johns.  Ch.  (N.  Y.)  197  (1816). 

2  Grant  v.  Duane,  9  Johns.  Rep.  (N.  Y.)  591  (1812).  See  the 
clear  opinion  of  Caton,  J.,  in  Willis  v.  Henderson,  4  Scam.  (111.) 
13,  20  (1842) ;  Fisher,  §  374.  For  the  English  cases,  see  Newton  v. 
Earl  of  Egmont,  4  Sim.  574  (1831) ;  5  id.  130  ;  Thomas  v.  Dun- 
ning, 5  De  G.  &  S.  618  (1852) ;  Troughton  v.  Binkes,  6  Ves.  573 
(1801),  A  few  creditors  may  represent  the  remainder ;  Holland 
V.  Baker,  3  Hare,  68  (1842).  See  also  Powell  v.  Wright,  7  Beav. 
444  (1844) ;  Gore  v.  Harris,  15  Jur.  761  (1850)  ;  Smart  v.  Brad- 
stock,  7  Beav.  500  (1844) ;  Doodv  v.  Higsritis,  9  Hare  Appx.  32 
(1852);  Wallwyn  v.  Coiitts,  3  Mer.  707  (1815)  ;  Garrard  v.  Lord 
Louderdale,  3  Sim.  1  (1822) ;  Law  v.  Bagwell,  4  Dru.  &  W.  406. 

■^  Union  Bank  v.  Bell,  14  Ohio  St.  200  (1862). 
4  1  N.  Y.  R.  S.  728,  §§  47,  49.     Rawson  v.  Lampman,  5  N. 
Y.  456  (1851). 
^  See  §  52,  ante,  and  the  notes,  for  special  instances. 
«  Williamson  v.  Field,  2  Sandf.  Ch.  (N.  Y.)  533  (1845). 


» 

124  PARTIES    TO    MORTGAGE    FORECLOSURES. 

same  would  hold  true  if  the  mortgage  were  executed 
by  a  trustee  under  authority  contained  in  a  will  or 
other  instrument.^  The  general  rule  of  law  of  this 
section  is  undoubtedly  founded  on  the  broad  principle, 
that  all  persons  having  an  interest  in  the  equity  of 
redemption  should  be  made  parties,  and  that  none  of 
them  are  concluded  as  to  tlieir  rights  unless  they  are 
brought  into  the  action  and  the  court  acquires  jurisdic- 
tion of  them.  Although  the  trustee  has  a  quasi  interest 
in  the  premises,  the  beneficiaries  are,  nevertheless,  the 
actual  parties  in  interest,  owning  as  they  do  the  equitable 
if  not  the  legal  title  to  the  premises. 

§  54.  Remaindermen  and  reversioners  necessary. 

All  persons  having  a  vested  estate  of  inherit- 
ance in  remainder  or  reversion  in  mortgaged  prem- 
ises must  be  brought  into  court  in  an  action  to 
foreclose  a  mortgage ;  but  where  there  are  several 
future  and  contingent  interests  in  the  equity  of  redemp- 
tion in  mortgaged  premises,  it  is  not  necessary  gener- 
ally to  make  every  person  having  a  future  and  contin- 
gent interest  a  party  to  a  bill  of  foreclosure.  It  seems 
sufficient  if  the  person  who  has  the  first  vested  estate 
of  inheritance,  and  the  several  intermediate  remainder- 
men and  persons  having  or  claiming  rights  or  interests 
in  the  premises  prior  to  the  vested  estates,  are  brought 
before  the  court."-    It  is  clear  equitable  law  that  in  order 

1  Albany  Fire  Ins.  Co.  v.  Bay,  4  N.  Y.  9,  19  (1850). 

2  Williamson  v.  Field,  2  Sandf.  Ch.  (N.  Y.)  533,  563  (1845) ; 
Eagle  F.  Ins.  Co.  v.  Cammet,  2  Edw.  Ch.  (N.  Y.)  127  (1833); 
Nodine  v.  Greenfield,  7  Paige  (N.  Y.),  544  (1859) ;  Le^sett  v. 
Mutual  Life  Ins.  Co.,  64  Barb.  (N.  Y.)  23,  36  (1872) ;  Rathbone 
V.  Hooney,   58  N.  Y.  463  (1874).     iSee  Lockman  v.  Reilley,  10 


REMAINDERMEN    AND    REVERSIONERS.  125 

to  make  a  foreclosure  valid  as  against  all  claimants,  he 
who  has  the  first  estate  of  inheritance  must  be  brought 
before  the  court ;  and  even  then  the  intermediate  re- 
maindermen for  life  ought  also  to  be  brought  before  the 
court,  to  give  them  an  opportunity  to  pay  off  the  mort- 
gage if  they  desire.^  In  a  case  where  mortgaged 
premises  were  bequeathed  by  a  mortgagor  to  his  wife  for 
life  with  remainder  in  fee  to  the  children  of  his  brother 
who  should  be  living  at  the  time  of  her  death,  and  to 
the  issue  of  such  of  the  children  as  should  then  have 
died  leaving  issue,  with  the  power  to  his  executors  to 
sell  his  real  estate  and  invest  the  proceeds  for  the  bene- 
fit of  the  devisees,  the  court  decided  that  the  children 
of  the  brother  who  were  in  esse  at  the  death  of  the 
testator,  took  vested  remainders  in  fee,  subject  to  open 
and  let  in  after-born  children,  and  subject  also  to  be 
divested  by  death  during  the  continuance  of  the  life 
estate  of  the  widow,  or  to  be  defeated  by  the  execution 
of  the  power  of  sale  given  to  the  executors  by  the  ^\\W  ; 
and  that  accordingly  the  children  of  the  brother  who 
were  in  esse   at  the  time  of  filing  the  bill,  ought  to  have 

Abb.  N.  C.  (N.  Y.)  351  (1881),  where  questions  affecting  the  inter- 
pretation of  a  will  were  also  involved.  See  Iowa  Loan  &  Trust 
Co.  V.  King,  58  Iowa,  598  (1882).  See  Breit  v.  Yeaton,  101  111. 
242  (1882),  an  action  for  partition.  For  the  English  authorities,  see 
Fisher,  §  809  et  seq.  ;  Lloyd  v.  Johnson,  9  Ves.  37  (1802) ;  Giffbrd 
V.  Hort,  1  Sch.  &  Lef.  386,  408  (1804) ;  Roscarrick  v.  Barton,  1 
Ch.  Ca.  218  (1671) ;  Sutton  v.  Stone,  2  Atk.  101  (1740) ;  Fish- 
wick  V.  Lowe,  1  Cox  Cas.  in  Eq.  411  (1787)  ;  Choppell  v.  Rees,  1 
De  G.,  M.  &  G.  393  (1852) ;  Gove  v.  Stockpole,  1  Dow,  18,  31 
(1813);  Cholraondeley  v.  Clinton,  2  Jac.  &  W.  133  (1820);  Hop- 
kins v.  Hopkins,  1  Atk.  581,  590  (1738);  Kerrick  v.  Safiery,  7 
Sim.  317  (1835);  Piatt  v.  Spriyg,  2  Vern.  304(1693);  Yates  v. 
Hanibly,  2  Atk.  237  (1741). 

^  Gove  V.    Stockpole,   1  Dow  (Eng.)  Rep.   31   (1813);    opinion 
rendered  in  the  House  of  Lords,  per  Lord  Chancellor  Eldon. 


126  PARTIES    TO    MORTGAGE    FORECLOSURES. 

been  made  parties  to  the  foreclosure,  and  that  their 
equity  of  redemption  was  not  barred  by  a  decree  in  a 
suit  in  which  the  widow,  the  executors  and  the  heirs 
at  hiw  alone  were  made  parties.^ 

All  the  courts  are  agreed  in  cases  involving  these 
questions,  that  there  must  be  a  defendant  who  is  a  per- 
son in  esse,-  and  who  holds  a  vested  estate  of  inherit- 
ance ;  and  they  are  farther  agreed  that  all  persons 
having  estates  and  interests  prior  or  superior  thereto, 
must  be  defendants.'^  As  Vice-Chancellor  McCoun 
says,  "A  decree  against  the  party  having  the  estate  of 
inheritance  will  bind  those  in  remainder  or  who  in  any 
way  come  afterwards;  there  must  be  a  clear  tenancy 
in  tail  to  dispense  with  the  necessity  of  a  remainderman 
being  a  party  to  a  bill  of  foreclosure.  If  there  be  an 
express  estate  for  life,  and  it  is  doubtful  whether  the  same 
person  is  also  tenant  in  tail,  the  remainderman  who  has 
the  first  estate  of  inheritance   ought  to  be  a  party."* 

1  Nodiiie  V.  Greenfield,  7  Paige  (X.  Y.),  544  (1839),  a  leading 
case,  per  Chaacellor  Walworth,  citing  and  quoting  Lord 
Eldon,  supra. 

2  See  Clark  v.  Reybiirn,  8  Wal.  (U.  8.)  318  (1808),  where  mort- 
gaged preniirses  had  been  conveyed  in  trust  for  the  benefit  of 
children  born  an  i  to  be  born  ;  all  the  children  in  esse  at  the  time 
of  filing  the  bill  of  foreclosure  were  held  necessary  parties.  See 
the  case  cited  supra  in  this  section. 

3  English  authorities:  Fisher,  §g  311-315.  A  tenant  for  life 
is  necessary;  Reyuoldson  v.  Perkins,  Auibl.  564  (1769).  See  Hand- 
cock  V.  Shaen,  Coll.  P.  C.  122  (1701),  holding  that  intermediate 
remaindermen  are  necessary.  See  Chappell  v.  Rees,  1  De  G.,  M. 
&  G.  393  (1852)  ;  Gove  v.  Stockpole,  1  Dow  Rep.  31  (1813). 

*  Eagle  F.  Ins.  Co.  v.  Comrnet,  2  Edw.  Ch.  (N.  Y.)  128  (1833). 
In  this  case  M.  C.  mortgaged  real  estate  and  died  after  making 
his  will,  by  which  he  gave  all  his  real  and  personal  estate  to  his 
widow  until  second  marriage  or  death  ;  then  to  his  daughter 
Mary,  as  long  as  she  should  live  ;  and  if  she  should  have  no  heirs 
at  her  death,  then  to  ^'o  to  the  children  of  J.  C.     It  was  lield 


ASSIGNEES  IN  BANKRUPTCY,  ETC.,  AND  RECEIVERS.       127 

Though  the  cases  are  uniform  in  using  the  term,  "  the 
first  estate  of  inheritance,"  it  would  certainly  be  advis- 
able to  make  even  the  remotest  remainderman  or  rever- 
sioner, if  he  is  in  esse,  also  a  party  ;  it  will  avoid  the 
raising  of  any  question  by  him  upon  the  determination 
or  failure  of  the  intermediate  estate. 


§  55.  Assignee  in  bankruptcy  and  by  voluntary  general 
assignment,  and  receiver,  necessary. 

An  assignee  in  bankruptcy,  under  the  former  national 
bankrupt  act,  or  by  voluntary  general  assignment  under 
the  statutes  of  the  several  states,  of  the  owner  of  the 
equity  of  redemption  in  mortgaged  premises,  is  a  necessary 
defendant^  to  a  foreclosure,  if  the  petition  in  bankruptcy 
or  the  voluntary  assignment  was  made  before  the  com- 
mencement of  the  action  to  foreclose ;  so  also  the 
receiver  of  an  insolvent  corporation  is  a  necessary  defend- 
that  the  daughter  Mary  had  only  a  life  estate,  and  that  on  a  bill 
of  foreclosure  the  children  of  J.  C.  ought  to  have  been  made 
parties.  "  The  first  tenant  in  tail,"  says  Lord  Camden,  "  is  suffi- 
cient ;  he  sustains  the  interests  of  everybody ;  thus  any 
remaindermen  are  considered  ciphers."  Revnoldson  v.  Perkins, 
Ambl.  (Eng.)  564  (1769). 

1  Cleveland  v.  Boerura,  28  Barb  (N.  Y.)  205  (1856) ;  aflf'd 
24  N.  Y.  613  (L'-56);  Lenihan  v.  Haman,  55  id.  652 
(1873) ;  Eyster  v.  Gaff,  91  U.  8.  521  (1875| ;  Bard  v.  Poole,  12 
N.  Y.  .507  (1855),  a  case  of  voluntary  assis/nnient ;  Winslow  v. 
Clark,  47  N.  Y.  261,  263  (1872) ;  Spring?  v.  8hort,  90  id.  538,  545 
(1882) ;  Gardner  v.  Brown,  21  Wal.  (U":  H.)  36  (1876) ;  Stimpson 
V.  Pease,  53  Iowa,  572  (1880)  ;  Harris  v.  Cornell,  80  111.  54 
(1875).  In  Chickering  v.  Failes,  26  id.  507  (1861),  the  assignee 
was  held  a  necessary  party  if  the  foreclosure  was  by  an  equi- 
table action,  but  not  if  it  were  conducted  by  scire  facias.  King 
v.  Bowman,  24  La.  Ann.  506  (1872) ;  Freeland  v.  Freeland,  102 
Mass.  475  (1869);  Moors  v.  Albro,  129  id.  9  (1880);  Thorpe  v. 
Ricks,  1  Devereux  &  B.  Eq.  (N.  C.)  619,  620  (1837) ;  Dwyer  v. 
Garlough,  31  Ohio  «t.  158  (1877)  ;  Fisher,  §  308. 


128  PARTIES    TO    MORTGAGE    FORECLOSURES. 

aiit.^  This  rule  follows  in  analogy  the  broader  principle  of 
law  which  makes  the  owner  of  the  equity  of  redemption 
always  a  necessary  party  to  a  foreclosure  in  order  to  pro- 
duce a  perfect  title.'-  The  assignee  succeeds  by  the 
assignment  to  all  the  rights  of  the  assignor,  and 
becomes  the  owner  of  the  equity.  It  must  be  carefully 
noticed,  that  tO  make  the  assignee  a  necessary  party, 
the  assignment  must  be  made  while  the  assignor  owns 
the  equity  and  before  the  commencement  of  the  action 
to  foreclose.  The  assignor  is  not  a  necessary  party 
after  the  assignment  f  but  he  may  properly  be  made  a 
defendant.^ 

Among  the  early  decisions  in  New  York^  it  was  held 
that  if  an  assignment  were  made  during  the  pendency 
of  an  action  to  foreclose,  the  decree  of  sale  would  be 
void  as  against  the  assignee,  unless  he  were  brought  in 
as  a  party.  The  later  decisions  in  all  the  courts  of  the 
country,  however,  are  uniform  in  applying  to  assignees 
in  bankruptcy  the  general  rule  previously  stated,  that 
purchasers  pendente  lite  are  not  necessary  parties.*^  Jus- 
tice Miller  held,  in  the  Supreme  Court'  of  the  United 

1  Rayiior  v.  8elmes,  52  N.  Y.  579  (1873),  reversing  7  Lans.  440. 

2  See  §§  34  and  38,  ante. 

3  Kerrick  v.  Saffery,  7  Sim.  (Eng.)  317  (1835) ;  Llovd  v.  Lan- 
der, 5  Madd.  (Eno-.)  282  (1821)  ;  Collins  v.  Shirley,  1  R.  &  M. 
(Eng.)  638  (1830)*;  Rochfort  v.  Battersby,  14  Jur.  (Eng.)  229 
(1849)  ;  Fislier,  i^  306. 

-t  Fisher,  i^  307 ;  Cashell  v.  Kelly,  2  Drn.  &  War.  (Eng.)  181 ; 
Raffertv  v.  King,  1  Keen.  (Eng.)  619;  Eades  v.  Harris,  1  Y.  & 
C.  (Eng)  234  (1842);  Sinyleton  v.  Cox,  4  Hare  (Ens:.)  326 
(1845) ;  Collins  v.  Shirley,  1  Russ.  &  M.  (Eng.)  638  (1830) ;  9 
Sim.  39. t ;  Franklyn  v.  Fern,  Barn.  Ch.  (Enff.)  folio  30,  32  (1740). 

5  Johnson  v.  Fitzhuffh,  3  Barb.  Ch.  (N.  Y.)  360  (1848) ;  Sedg- 
wick V.  Cleveland,  7  Paiue  (N.  Y.),  290  291  (1838) ;  Burr  v.  Burr, 
10  id.  20(1842). 

"  See  §  40,  ante.     See  the  cases  cited  supra. 

^  Eyster  v.  Gaff,  91  U.  S.  521  (1875). 


ASSIGNEE    PENDENTE    LITE    NOT    NECESSARY.  129 

States,  that  where  the  assignee  in  bankruptcy  of  a 
mortgagor  is  appointed  during  the  pendency  of  a  fore- 
closure of  the  mortgaged  premises,  he  stands  as  any 
other  purchaser  would  stand,  on  whom  the  title  had 
fallen  after  the  commencement  of  the  suit.  If  there  is 
any  reason  for  interposing,  the  assignee  should  have 
himself  substituted  for  the  bankrupt  or  be  made  a 
defendant  on  petition,  Justice  Allen,  in  deciding  the 
same  question  in  the  New  York  Court  of  Appeals,^  in 
1873,  held  substantially  the  same  ruling,  and  further 
that  such  a  foreclosure  might  be  restrained  by  injunc- 
tion by  a  United  States  court  in  bankruptcy,  but  that, 
if  allowed  to  proceed,  the  purchaser  at  the  sale  would 
acquire  a  good  title  as  against  the  mortgagor  or  owner 
of  the  equity  of  redemption  and  against  all  parties 
claiming  under  them,  including  an  assignee  in  bank- 
ruptcy. An  exhaustive  discussion  of  the  question 
decided  in  these  cases  was  given  by  Justice  Strong  in 
Cleveland  v.  Boenim.'-  Indeed,  this  was  the  earliest 
case  to  sustain  the  proposition  of  this  section ;  it  col- 
lates and  reviews  all  the  previous  cases.  The  error 
of  the  early  decisions  was  due  to  the  distinction  made 
by  the  courts  between  transfers  made  pendente  lite  by 
the  voluntary  act  of  the  assignor  and  those  accomplished 
by  operation  of  law. 

§  56.  Infants,    lunatics,    idiots    and    habitual    drunkards 
necessary  parties. 

Provision  has  been  made  in  the  statutes  of  most  of 
the  states  for  a  proceeding  to  dispose  of  the  real  prop- 

1  Lenihati  v.  Ilamami,  55  N.  Y.  652  (1878). 

2  23  Barb.  (N.  Y.)  2(J5 ;  ard  24  N.  Y.  613  (1856). 

0 


130  PARTIES    TO    MORTGAGE    FORECLOSURES. 

erty  of  infiints,  lunatics,  idiots  and  habitual  drunkards 
by  sale,  mortgage  or  lease.  Prior  to  these  statutes 
there  was  a  proceeding  in  the  common -law  practice  to 
accomplish  the  same  purpose.  Where  a  mortgage  has 
been  executed  by  a  guardian  or  a  committee  of  an 
incompetent  person  pursuant  to  an  order  of  a  court,  the 
infant,  lunatic,  idiot,  or  habitual  drunkard,  as  the  case 
may  be,  is  a  necessary  defendant  in  an  action  to  fore- 
close the  mortgage.^  Some  of  the  states  declare  the 
effect  of  such  conveyances.  The  New  York  Code  of  Civil 
Procedure  declares  that  such  a  mortgage  "  has  the  same 
validity  and  effect  as  if  it  was  executed  by  the  person  in 
whose  behalf  it  was  executed,  and  as  if  the  infant  was 
of  full  age,  or  the  lunatic,  idiot,  or  habitual  drunkard 
was  of  sound  mind  and  competent  to  arrange  his  own 
aiFairs."-'     A  mortgage  executed  under  such  a  proceed- 

1  Prentiss  V.  Cornell,  31  Hnn  (N.Y.),  167  (1883) ;  see  Agricultu- 
ral Ins.  Co.  V.  Barnard,  96  N.  Y.  525  (1884),  holding  also  that  a 
bond  is  not  necessary  with  such  a  mortgage,  but  it  is  discretion- 
ary in  the  court  to  require  it.  See  Lvon  v.  Lyon,  67  id.  250 
(1876) ;  McManis  v.  Rice,  48  Iowa,  361  (1878).  In  Eslava  v. 
Le  Pretre,  21  Ala.  504  (1852),  the  committee  of  a  lunatic,  who 
had  been  irregularly  appointed,  executed  a  mortgage  jointly 
with  her  husband  ;  on  foreclosure  the  lunatic  was  held  a  neces- 
sary party,  owing  to  the  defect  in  the  ap]  ointment.  In  Parker 
V.  Lincoln,  12  Mass.  16  (1815),  a  mortgage  was  executed  to  an 
infant  who  had  a  guardian  ;  the  mortgagor,  bringing  an  action 
to  redeem,  was  obliged  to  make  both  the  infant  and  his  guardian 
parties  to  the  action.  It  would  seem  that  in  Illinois  an  infant  is  not 
a  necessary  party  in  any  legal  proceedings  where  he  has  a  guard- 
ian to  represent  his  interests;  Merritt  v.  Simpson,  41  111.  391 
<1866) ;  Campbell  v.  Harmon,  43  id.  18  (1867).  In  Boston  Bank 
V.  Chamberlain,  15  Mass.  220  (1818),  an  infant  had  executed  a 
mortgage ;  after  reaching  his  majority  he  conveyed  the  premises 
subject  to  the  mortgage.  In  an  action  to  foreclose,  infancy  at  the 
time  of  executing  the  mortgage  was  pleaded  in  defense,  but  held 
no  bar  to  its  validity. 

2  New  York  Code,  §  2358 ;  Matter  of  Application  of  Mary  E. 


INFANTS,    IDIOTS,    ETC.,    AS  DEFENDANTS.  131 

ing  does  not  bind  a  wife's  inchoate  right  of  dower,  and 
she  is  not  a  necessary  or  proper  party  to  a  foreclosure 
of  the  mortgage  unless  she  has  voluntarily  signed  it.^ 
If  an  infant  or  incompetent  person  whose  real  property 
has  been  mortgag^  in  such  a  proceeding  should  die 
before  an  action  to  foreclose  was  commenced,  his  heirs, 
devisees  or  legatees,  as  the  case  might  be,  would  become 
necessary  parties.'-  It  is  to  be  observed  that  a  proceed- 
ing to  mortgage  the  property  of  an  infant  or  incompe- 
tent person  is  statutory  ;  and  it  is  assumed  here  that 
the  proceeding  has  been  properly  conducted,  and  the 
mortgage  duly  executed.  The  plaintiff 'in  the  fore- 
closure must  allege  in  his  complaint  facts,  showing  the 
interest  of  the  infant  or  incompetent  person  in  the 
premises  if  he  is  made  a  defendant.^  Great  care  should 
be  taken  to  secure  legal  service  of  the  summons  upon 
the  infant  or  incompetent  person  ;  it  is  also  essential 
that  a  guardian  ad  litem  be  appointed  to  represent  the 
interests  of  the  infant."^  The  guardian  or  committee 
who  executes  the  mortgage  pursuant  to  an  order  of  the 
court  is  a  very  desirable,  if  not  an  indispensable,  party 
to  the  action  to  foreclose,  especially  as  he  is  interested 
in  caring  for  any  surplus  that  may  arise,  and  in  seeing 
that  no  deficiency  is  created. 

Price,    67  N.    Y.   281   (187(3);  Valentine  v.  Ilaff,  72  N.  Y.  184 
(1878) ;  Cole  v.  Gourlay,  9  Huu  (N.  Y.),  498  (1877). 
^  Hee  §  44,  ante. 

2  8ee  §§  48,  49,  50,  ante. 

3  Aldrich  v.  Lapliam,  6  How.  (N.  Y.)  129  (1850). 

^  Hee  Ingersoll  v.  Mangam,  84  N.  Y.  622  (1881),  stating  what 
constitutes  proper  service  on  a  non-resident  infant  under  the  age 
of  fourteen  years.  Where  there  is  a  defect  in  the  action  which 
results  in  a  failure  to  cut  off  the  interest  of  the  infant,  he  can 
maintain  an  action  to  set  aside  the  foreclosure  as  to  himself,  on 
arriving  at  his  majority;  McMurrav  v.  McMurray.  iS^S  N.  Y.  175 
(1876). 


132  PARTIES    TO    MORTGAGE    FORECLOSURES. 

§  57.  Mortgage  executed  by  administrator  or  executor  to 
pay  decedent's  debts ;  heirs  and  devisees  of  the 
decedent  necessary. 

Many  of  the  states  have  made  statutory  provisions 
in  their  Codes  or  otherwise  for  disposing  of  a  deceased 
person's  real  estate  to  pay  his  debts,  which  provisions 
are,  in  form  and  purpose,  not  unUke  those  made  for  dis- 
posing of  the  property  of  infants  and  incompetent  per- 
sons. The  practice  under  such  provisions  varies  in  dif- 
ferent states.  But  it  is  a  general  principle  of  law, 
recognized  by  all  courts,  that  administrators  or  execu- 
tors in  mortiiagino;  or  sellino;  a  decedent's  real  estate  act 
simply  in  a  capacity  representative  of  the  decedent,  and 
are  guided  by  orders  of  the  probate  court.  The  title 
to  the  premises  mortgaged  in  such  a  proceeding  vests  in 
the  heirs  or  devisees  immediately  upon  the  death  of 
the  decedent,  and  is  incumbered  only  pursuant  to  a 
statutory  proceeding  designed  to  marshal  and  pay  his 
debts.  In  New  York  it  is  declared  that  a  mortgage 
executed  pursuant  to  such  a  proceeding  has  the 
same  effect  as  if  it  had  been  made  by  the  decedent 
immediately  before  his  death. ^  The  administrator  or 
executor  who  signed  the  mortgage  under  the  order  of 
the  probate  court  is  a  very  proper,  if  not  an  absolutely 
necessary,  party  to  an  action  to  foreclose,  as  he  is  in 
some  measure  interested  in  the  action,' 

§  58.  Corporations  necessary  parties  by  corporate  nanie. 

Corporations  play  such  an  important  part  in  the  com- 
mercial, industrial  and  social  life  of  this  age  that  legis- 

1  New  York  Code,  §  2760. 

2  See  McMaimis  v.  Rice,  48  Iowa,  361  (1878). 


CORPORATIONS    DEFENDANTS.  133 

latures  and  courts  have  materially  enlarged  their  rights 
and  privileges  so  that  more  than  ever  they  are  a  "  single 
individual"^  in  the  law.  They  are  generally  vested 
with  all  the  rights  and  may  assume  all  the  obligations 
known  to  the  law.  With  limited  exceptions  they  may 
acquire  real  estate  and  convey  the  same  hy  deed  or 
mortgage.- 

Whenever  a  corporation  in  its  corporate  name 
becomes  the  owner  of  the  equity  of  redemption  in 
mortgaged  premises  or  executes  a  mortgage  upon  its 
real  estate,  it  is  a  necessary  defendant  to  a  foreclosure 
in  its  corporate  name.^  This  rule  is  based  upon  the 
broad  principle  that  corporations  may  sue  and  be  sued 
in  law  by  their  corporate  names.^ 

§  59.  Tenants  and  occupants  necessary. 

Every  tenant  who  takes  a  lease  from  the  owner  of 
the  equity  of  redemption  in  mortgaged  premises  subse- 
quent to  the  execution  and  delivery  of  the  mortgage  is 
a  necessary  defendant  to  a  foreclosure.'^    The  occujDant  or 

1  2  Kent,  267. 

2  See  Aurora  Agricultural  &  H.  Society  v.  Paddock,  80  111.  263 
(1873).  As  to  what  is  necessary  to  authorize  a  manufacturing 
corporation  to  execute  a  mortgage  in  New  York,  see  G.  Sugar 
Co.  V.  Whitin,  69  N.  Y.  328  (1877) ;  Rochester  Savings  Bank  v. 
Averell,  96  id.  467  (1884). 

3  Donnelly  v.  Rusch,  15  Iowa,  99  (1863);  Ottawa  Northern 
Plank  Road  Co.  v.  Murray,  15  111.  336  (1854) ;  Reed  v.  Bradley, 
17  id.  321  (1856). 

■^  2  Kent,  283,  292  ;  People's  Bank  v.  Hamilton  Manufacturing 
Co.,  10  Paige  (N.  Y.),  481  (1843). 

5  Clarkson  v.  Skidmore,  46  N.  Y.  297  (1871).  modifying  2 
Lans.  (N.  Y.)  238;  Whalen  v.  White,  25  id.  462  (1862);  Globe 
Marble  Mills  Co.  v.  Quinn,  76  id.  23  (1879);  Hirsch  v.  Living- 
ston, 3  Hun  (N.  Y.),  9  (1874) ;  S.  C,  48  How.  (N.  Y.)  243.  See 
Peck  V.  Knickerbocker  Ice  Co.,  18  Hun  (N.  Y.),  183  (1879);  Ful- 


134  PARTIES    TO    MORTGAGE    FORECLOSURES. 

person  in  possession  of  the  premises  at  the  time  of  the 
commencement  of  the  foreclosure  is  also  indispensable, 
no  matter  how  or  under  what  circumstances  he  came 
into  possession.^  Atenant  or  occupant  not  made  a  party 
is  not  bound  by  the  decree,  and  if  omitted,  he  cannot 
be  ejected  till  the  expiration  of  his  tenancy."-  His 
omission  will,  moreover,  produce  such  a  defect  of  title 
as  to  relieve  a  purchaser  at  the  sale  of  his  bid.^ 

A  tenant  is  not  affected  by  a  foreclosure,  till  the  sale 
is  consummated  and  the  deed  delivered.^  And  if  he  is 
omitted  as  a  party,  he  will  be  entitled  to  the  emblements, 
and  all  crops  that  may  be  grown  before  the  expiration 
of  his  term  ;  the  purchaser  at  the  sale  receives  his  title 
subject  to  the  rights  of  the  tenant.''  In  a  case  where 
pending  a  foreclosure  a  tenant  went  into  possession, 
raised  and  cut  a  crop  of  wheat  before  the  action  was 
concluded,  he  was  allowed  to  carry  it  away.*^     If  a  ten- 

ler  V.  Van  Geeseii,  4  Hill  (N.  Y.),  171  (1843).  See  Zeiter  v.  Bow- 
man, 6  Barb.  (N.  Y.)  183  (1849) ;  Clason  v.  Corley,  5  Handf.  S. 
C.  (N.  Y.)  447  (1852) ;  Ostrom  v.  McCann,  21  How.  (N.  Y.)  432, 
433  (1860)  ;  Campbell  v.  Savag-e,  33  Ark.  678  (1879)  ;  Fletcher  v. 
Gary,  103  Mass.  475  (1870)  ;  Tuttle  v.  Lane,  17  Me.  437  (1840); 
Hemphill  v.  Ross,  m  N.  C.  477,  480  (1872) ;  Gortside  v.  Outlay, 
58  111.  210,  215  (1871). 

1  McLain  v,  Badgett  &  Smith,  4  Ark.  244  (1842) ;  Buckner  v. 
Sessions,  27  id.  219  (1871)  ;  Cox  v.  Vickers,  35  Ind.  27  (1870) ; 
Ostrom  V.  McCann,  21  How.  (N.  Y.)  431,  433  (1860). 

-  Suiter  v.  Turner,  10  Iowa,  517,  527  (1860) ;  Downard  v.  GrofF, 
40  id.  597,  598  (1875) ;  Sproule  v.  Samuel,  4  Scam.  (111.)  135, 139 
(1844).  In  point,  Richardson  v.  Hadsail,  106  111.  476,  479  (1883) ; 
McDermott  v.  Burke,  16  Cal.  580  (1860) ;  Delespine  v.  Campbell, 
45  Tex.  268  (1879).     See  the  New  York  cases,  supra. 

3  Hirsch  v.  Livingston,  3  Hun  (N.  Y.),  9  (1874) ;  S.  C,  48  How. 
(N.  Y.)  24;.'. 

4  Whalin  V.  White,  25  N.  Y.  462  (1862). 

5  Cassilly  v.  Rhodes,  12  Ohio  Rep.  88  (1843),  a  leading  case  on 
the  subject  of  tenants'  rie:hts. 

6  Johnson  v.  Camp,  5l"lll.  219  (1869). 


TENANTS  AND  OCCUPANTS  DEFENDANTS.       135 

ant  is  made  a  party  and  his  rights  are  cut  off  by  the 
action,  he  will  be  entitled  from  the  surplus  money,  if  any, 
to  the  value  of  his  unexpired  term  and  damages  for  eject- 
ment ;  if  there  is  no  surplus,  an  action  will  stand  against 
the  lessor  for  damages.^  Foreclosure  before  the  expiration 
of  a  tenant's  term  will  not  prejudice  his  right  to  remove 
fixtures.-  A  tenant  or  other  person,  who  holds  posses- 
sion after  the  execution  and  delivery  of  the  deed  by  the 
referee  to  sell,  may  be  ejected  at  once,  if  he  was  made 
a  party  to  the  action  f  but  in  some  states  confirmation 
of  the  referee's  report  of  sale  is  necessary  before  eject- 
ment can  be  maintained.* 

1  Clarksoii  v.  Skidmore,  46  N.  Y.  297  (1871),  modifying  2 
Lans.  238. 

2  Globe  Marble  Mills  Co.  v.  Quinn,  76  N.  Y.  23  (1879). 

3  New  York  Code,  §  2232 ;  Hirsch  v.  Livingston,  3  Hun  (N. 
Y.),  9,  10  (1874). 

4  Astor  V.  Turner,  11  Paige  (N.  Y.),  436  (1845) ;  Clason  v. 
Corley,  5  Sandf.  S.  C.  (N.  Y.)  447  (1852);  Peck  v.  Knicker- 
bocker Ice  Co.,  18  Hun  (N.  Y.),  183,  186  (1879). 


CHAPTER  11. 

SUBSEQUENT  MORTGAGEES  AND  LIENORS. 

§  60.     Introductory. 

61.  yubsequent  mortgagees,  still  owning  their  mortgages, 

necessary  parties. 

62.  Subsequent  judgment   creditors,    still   owning  judg- 

ments, necessary. 

63.  Mechanic's  lien,  owner  of,  necessary. 

64.  Subsequent   mortgagee,   judgment   creditor   or  other 

lienor,  an   assignor  no  longer  holding  the  incum- 
brance, and  intermediate  assignors,  not  necessary. 

65.  Subsequent  mortgagees  or  other  lienors,  still  holding 

any  kind  of  an  equitable  or  contingent  interest  in 
the  lien,  or  being  part  or  joint  owners,  generally 
necessary. 
Q6.     Assignee  of  subsequent  mortgage,  judgment  or  other 
lien,  necessary.  * 

67.  Assignee  of  subsequent  mortgage  or  lien  pendente  lite 

not  necessary. 

68.  Incumbrancer  pendente  lite  not  necessary. 

69.  Subsequent  mortgagee  or  lienor  a  married  woman,  does 

not  alter  the  rule ;  necessary. 

70.  Heirs,  devisees,  legatees  and  annuitants  of  deceased 

subsequent  mortgagee  or  lienor  generally  not  neces- 
sary. 

71.  Executors  and  administrators  of  a  deceased  subsequent 

mortgagee  or  lienor  necessary. 

72.  Assignee  in   bankruptcy  and  voluntary  general  as- 

signee of  subsequent  mortgagee  or  lienor  necessary. 


INTRODUCTORY SUBJECT    OF    CHAPTER.  137 

'       ^  73.     General  guardian  of  infant  and  committee  of  lunatic, 
idiot  or  habitual  drunkard,  trustees  and  beneficiaries 
holding  subsequent  mortgage  or  lien,  necessary. 
74.     Purchasers  at  tax  sales,  boards  of  supervisors,  state 
comptrollers  and  municipal  corporations  parties. 

§  60.  Introductory. 

In  this  chapter  will  be  continued  the  consideration  of 
parties  who  are  necessary  to  a  foreclosure  for  the  pur- 
pose of  rendering  to  the  purchaser  at  the  sale  as  perfect 
a  title  as  the  mortgagor  could  have  granted  at  the 
time  of  the  execution  of  the  mortgage ;  that  is,  such  a 
title  as  a  court  would  compel  a  bidder  at  the  sale  to 
accept.  As  has  been  stated,  this  part  of  the  work  is 
devoted  to  those  parties  who  are  necessary  and  indispen- 
sable to  the  accomplishment  of  such  a  purpose. 

In  the  preceding  chapter  attention  has  been  given 
exclusively  to  those  parties  who  are  necessary  to  an 
action  to  foreclose  and  cut  off  the  fee  title  and  the 
entire  equity  of  redemption  as  it  existed  in  the  mort- 
gagor and  the  owners  of  the  equity  from  him  by  grant, 
descent,  devise  or  otherwise,  even  to  the  remotest 
degree  in  quantity  of  title  or  interest.  In  this  chapter 
attention  will  be  given  entirely  to  those  parties  who 
acquired  incumbrances  and  liens  upon  the  equity  of 
redemption  subsequent  to  the  execution  of  the  mort- 
gage under  foreclosure.  It  is  to  be  kept  clearly  in  mind 
that  the  word  ".necessary,"  as  it  will  be  used  in  this 
chapter,  has  its  meaning  limited  and  defined  by  the 
purpose  of  the  plaintiff  in  the  action,  which  is,  as  has 
been  stated,  to  produce  and  offer  at  the  foreclosure 
sale    a    perfect    title.      The    word    "necessary"    has 


138  PARTIES    TO    MORTGAGE    FORECLOSURES. 

been  used  by  courts  and  text-book  writers  with  a 
great  deal  of  inaccuracy  and  confusion,  simply  because 
applied  with  an  absolute  and  invariable  meaning, 
whereas  it  is  a  general  and  indefinite  term  and  always 
relative  in  signification. 

Keeping  it  in  view,  then,  that  it  is  the  design  of  this 
chapter  to  consider  those  parties  who  have  acquired  an 
interest  in  the  equity  of  redemption  by  lien  or  incum- 
brance subsequent  to  the  execution  of  the  mortgage 
under  foreclosure,  it  may  be  said  generally  that  all  such 
parties  are  necessary  to  an  action  to  foreclose,  in  order 
to  extinguish  their  claims  and  the  claims  of  all  persons 
holdino;  under  them.  It  matters  not  whether  the  lien 
is  created  by  the  voluntary  act  of  the  owner  of  the 
equity,  as  in  executing  a  mortgage,  or  by  process  and 
operation  of  law,  as  in  docketing  a  judgment  against 
him.  The  theory  of  the  law  is,  that  such  an  incum- 
brance is  a  pledge  of  the  equity  for  the  debt,  and  gives 
the  lienor  an  equitable  interest  in  the  mortgaged  prem- 
ises. As  the  owner  of  the  equity  may,  by  an  absolute 
conveyance,  transfer  his  entire  interest,  and  thereby 
make  his  transferee  a  necessary  party,  as  we  have  seen, 
so  he  can  on  the  same  principle  pledge,  by  a  mortgage, 
judgment  or  otherwise,  a  part  or  the  whole  of  his  interest 
in  the  premises,  and  thereby  render  the  incumbrancer  a 
necessary  party  in  order  to  wipe  out  his  interest. 
Though  a  lienor  does  not  acquire  the  fee  title  to  the  equity, 
he  acquires  an  interest  in  the  premises  which  the  statutes 
of  the  various  states  have  long  established,  and  which  the 
courts  have  long  recognized  and  sustained ;  and  which 
parties,  dealing  with  the  premises,  cannot  ignore,  except 
at  their  own  peril.     It  is  to  be  observed  here  that  the 


EFFECT    OF    OMITTING    SUBSEQUENT    LIENORS.  139 

interests  in  the  mortgaged  premises  held  by  parties 
considered  in  this  chapter  are  personal  property,  while 
the  interests  held  by  parties  considered  in  the  pre- 
ceding chapter  were  estates  m  real  property. 

An  action  to  foreclose  will  not  be  dismissed  if  subse- 
quent incumbrancers  are  not  made  parties ;  it  can  be 
sustained  without  them,  but  their  rights  will  not  be 
concluded  and  their  interests  in  the  mortgaged  prem- 
ises extinguished,  unless  they  are  brought  into  the 
action.^  It  has  been  held  that  an  incumbrancer  may 
even  be  dismissed  from  the  action  on  motion  of  the 
plaintiff,  unless  he  objects ;-  and  a  subsequent  incum- 
brancer may  intervene  and  be  made  a  defendant  on  his 
own  application.^ 

§  61.  Subsequent  mortgagees,    still    ow^ning  their  mort- 
gages, necessary  parties. 

All  authorities  in  all  countries  where  mortgages  are 
foreclosed  by  equitable  actions  are  agreed  that  subse- 
quent and  junior  mortgagees  are  necessary  parties  to  the 
foreclosure  of  a  prior  mortgage  in  order  to  extinguish 
and  cut  off  their  liens.^     The  action  can  be  sustained 

^  Donnelly  v.  Rusch,  15  Iowa,  99  (1863) ;  Hiniestreet  v.  Win- 
nie, 10  id.  430  (1860),  relied  upon  in  iStreet  v.  Beal,  16  id.  68,  70 
(1864). 

2  Himestreet  v.  Winnie,  supra. 

^  Parott  V.  Hughes,  10  Io\Va,  459  (1860). 

4  Waller  v.  Harris,  7  Paige  (N.  Y.),  167  (1838) ;  Benedict  v. 
Gilraan,  4  id.  58  (1833) ;  Vroom  v.  Ditmas,  4  id.  526  (1834) ;  Van- 
derkemp  v.  8helton,  11  id.  28  (1844);  Peabody  v.  Roberts,  47  Barb. 
(N.Y.)  91  (1866) ;  Brainard  v.  Cooper,  10  N. Y.  356  (1852);  Gage  v. 
Brewster,  31  id.  218  (1865) ;  Arnot  v.  Post,  6  Hill  (N.  Y.),  65 
(1843) ;  Franklyn  v.  Hayward,  61  How.  (N.  Y.)  43  (1881) ;  Chores 
V.  Hcott  River  Co.,  21  Cal.  135  (1862) ;  Whitney  v.  Higgins,  10  id. 
547,  551  (1858) ;  Montgomery  v.  Tiitt,  11  id.  307,  314  (1858) ;  Car- 
penter v.  Brenham,  40  id.  221  (1870);  fcJmith  v.  Chapman,  4  Conn. 


140  PARTIES    TO    MORTGAGE    FORECLOSURES. 

without  them,  but  a  defective  title  would  be  offered  at 
the  sale  which  no  court  would  compel  a  bidder  to  ac- 
cept.- The  rule  has  long  been  settled  that  in  a  bill  to 
foreclose  a  mortgage,  the  rights  of  incumbrancers 
not  made    parties    to    the    suit,     are    not    barred    or 

346  (1822);  Goodman  v.  White,  26  id.  820(1857);  Broome  v.  Beers, 
6  id.  207  (1826) ;  8wift  v.  Edsoii,  5  id.  534  (1825) ;  Strang  v.  Allen, 
44  111.428(1867);  Hodgen  v.  Gutteiy,  58  id.  431  (1871).  See 
Shinn  v.  Shinn,  91  id.  477  (1879),  where  the  action  was  upon  a  deed 
of  trust  in  the  nature  of  a  mortgage.  In  Kenyon  v.  Shreck,  52 
111.  382  (1869),  subsequent  incumbrancers  were  held  not  necessary 
parties  to  a  proceeding  for  foreclosure  by  scire  facias  ;  aliter,  if  the 
foreclosure  is  bv  an  action  in  equity.  Proctor  v.  Baker,  15  Ind.  178 
(1860) ;  Murdock  v.  Ford,  17  id.  52  '(1861) ;  Holmes  v.  Bybee,  34  id. 
262  (1870);  Hasselman  v.  McKernan,  50  id.  441  (1875);  McKernan 
V.  Neff,  43  id.  503  (1873);  Hosford  v.  Johnson,  74  id.  479,  481  (1881); 
Catterlin  v.  Armstrong,  79  id.  514  (1881).  See  also,  in  point, 
Pattison  v.  Shaw,  6  id. '377  (1855) ;  Mack  v.  Graver,  12  id.  254 
(1859),  holding  junior  incumbrancers  proper,  but  not  necessary, 
parties.  Meredith  v.  Lackay,  14  id.  529  (1860) ;  S.  C,  16  id.  1 ; 
Anson  v.  Anson,  20  Iowa,  58  (1865) ;  Knowles  v.  Rablin,  lb.  103 ; 
Johnson  v,  Harmon,  19  id.  56  (1865);  Walker  v.  Schreiber,  47 
id.  529  (1877);  Newcomb  v.  Dewey,  27  id.  381  (1869) ;  Macey  v. 
Fenwick,  4B.  M.  (Ky.)  309  (1843) ;  Rogers  v.  Holyoke,  14  Minn. 
220  (1869);  Mills  v.  Traylor,  30  Texas,  7  (1867);  Hinson  v. 
Adriari,  86  N.  C.  61  (1882) ;  Farwell  v.  Murphy,  2  Wis.  533 
(1853) ;  Murphy  v.  Farwell,  9  id.  102  (1859) ;  Deuster  v.  Mc- 
Camus,  14  id.  307  (1861) ;  Moore  v.  Cord,  14  id.  213  (1861) ; 
Weed  V.  Beebe,  21  Vt.  495  (1849) ;  Brown  v.  Nevitt,  5  C.  (Miss.) 
801  (1854) ;  Jones,  §  1425  ;  Thomas,  p.  244.  For  the  English 
authorities,  see  Fisher,  §  318 ;  Adams  v.  Paynter,  1  Coll.  530 
(1844);  Tylee  v.  Webb,  6  Beav.  552  (1843) ;  Johnson  v.  Holds- 
worth,  1  Sim.  N.  S.  106  (1850)  ;  Burgess  v.  Sturges,  14  Beav.  440 
(1851) ;  Delabere  v.  Norwood,  3  Sw..l44  (1818);  Payne  v.  Comp- 
ton,  2  Y.  &  C.  457  (1837).  See  the  following  section  and  notes  ; 
also  the  cases  cited  in  the  remaining  notes  to  this  section.  In 
Rowan  v.  Mercer,  10  Humph.  (Tenn.)  359  (1849),  subsequent 
mortgagees  were  held  proper,  but  not  necessary,  parties ;  the 
decree  and  sale  were  held  conclusive  wdthout  them. 

^  Hess  V.  Feldkamp,  2  Disney  (Ohio),  332  (1858) ;  Cullum  v. 
Batre,  2  Ala.  415  (1841),  correcting  Judson  v.  Emanuel,  1  Ala. 
598  (1840).  See  Russell  v.  Mullanphy,  4  Mo.  Rep.  319  (1836) ; 
Valentine  v.  Havener,  20  id.  133  (1854) ;  Hay  ward  v.  Stearns, 
39  Cal.  58  (1870).    See  the  cases  supra. 


SUBSEQUENT    MORTGAGEES    DEFENDANTS.  141 

affected  by  the  decree.^  If  the  foreclosure  is  con- 
ducted by  advertisement,  the  same  rule  prevails."  If 
the  subsequent  mortgagee  is  a  trustee  for  namerous 
bondholders,  it  is  sufficient  to  make  him  a  defendant  in 
his  representative  capacity,  without  bringing  the  bond- 
holders into  the  action  ;  a  bondholder  may  interplead, 
however,  pro  interesse  suo.^  The  successor  of  a  trustee  is 
also  a  necessary  defendant  if  he  has  accepted  the  trust.^ 
If  a  junior  mortgagee  is  omitted  as  a  party,  his  remedy 
is  to  redeem  from  the  sale  under  foreclosure ;"'  and  this 
right  must  be  exercised  in  most  states  within  ten  years 
from  the  time  when  the  mortgage  debt  becomes  due.*^ 
In  his  redemption  an  accounting  of  rents  and  profits 
can  be  compelled,''  and  the  junior  mortgagee  will  be 

i  McCall  V.  Yard,  1  Stockt.  Ch.  (9  N.  J.  Eq.)  358  (1853) ;  S. 
C,  3  id.  58  (1855).  tSee  also  Willink  v.  Morris  Canal  &  Banking 
Co.,  3  Green  Ch.  (N.  J.)  377  (1843) ;  Gould  v.  Wheeler,  28  N.  J. 
Eq.  541  (1877). 

2  Winslow  V.  McCall,  32  Barb.  (N.  Y.)  241  (1860). 

3  McElrath  v.  Pittsburgh  &  S.  R.  Co.,  68  Penn.  37(1871); 
Supervisors  of  Iowa  County  v.  Mineral  Point  R.  R.,  24  Wis.  93 
(1869). 

4  Delaplaine  v.  Lewis,  19  Wis.  476  (1865). 

^  Wiley  V.  Ewing,  47  Ala.  418  (1872) ;  Carpentier  v.  Brenhani, 
40  Cal.  221  (1870);  Newcoinb  v.  Dewey,  27  Iowa,  381  (1869); 
Gower  v.  Winchester,  33  id.  303  (1871) ;"  Hodgen  v.  Gutterv,  58 
111.  431  (1871);  Clary  v.  Marshall,  5  B.  Mon.  (Ky.)  274  (1845); 
Cooper  V.  Martin,  1  Dana  (Ky.),  25  (1833) ;  Roriey  v.  Bell,  9 
Dana  (Ky.),  4  (1839) ;  Bank  of  U.  S.  v.  Carroll,  4  B.  Mon.  (Ky.) 
50  (1843);  Baker  v.  Pierson,  6  Mich.  522  (1859);  Avery  v.  Ryer- 
8on,  34  id.  362  (1876) ;  Renand  v.  Brown,  7  Neb.  449  (1878)".  ^ee 
the  cases  stqjra. 

6  Gage  V.  Brewster,  31  N.  Y.  218  (1865);  Peabody  v.  Roberts, 
47  Barb.  (N.  Y.)  91  (1866) ;  County  of  Floyd  v.  Cheney,  57  Iowa, 
160,  163  (1881) ;  Gower  v.  Winchester,  33  id.  303  (1871) ;  Craw- 
ford V.  Taylor,  42  id.  260  (1875).  In  Illinois  the  time  is  only 
seven  years;   Ewing  v.  Ainsworth,  53  111.  464  (1870). 

■^  Ten  Eyck  v.  Casad,  15  Iowa,  524  (1864) ;  Gage  v.  Brewster, 
31  N.  Y.  218  (1865).     See  the  next  note. 


142  PARTIES    TO    MORTGAGE    FORECLOSURES. 

obliged  to  pay  only  the  mortgage  del^t,  j^rincipal  and 
interest,  without  the  costs  of"  the  previous  foreclosure.^ 
Though  the  property  may  have  been  sold  under  fore- 
closure for  less  than  the  mortgage,  the  party  redeeming 
will  nevertheless  be  obliged  to  pay  the  amount  due  on 
the  mortgage  with  interest;  if  the  property  sold  for 
more  than  the  amount  of  the  mortgage,  its  selling  price 
becomes  the  amount  to  be  paid  to  redeem.^  After  a 
mortgage  has  been  paid,  an  action  to  redeem  cannot  be 
maintained  upon  it.'^  It  has  been  held  in  some  cases 
that  a  junior  mortgagee,  who  was  omitted  as  a  defendant 
in  an  action  to  foreclose  a  senior  mortgage,  may  main- 
tain an  action  for  the  foreclosure  of  his  own  mortgage, 
instead  of  redeeming  from  the  sale  under  the  senior 
mortgage,  and  becoming  thereby  the  equitable  assignee 
of  the  senior  mortsage.^     "There  seems  to  be  no  im- 


1  Gagev.  Brewster,  supra;  opinions  per  Denio,  Ch.  J.,  Ingra- 
HAM  and  Mullen,  JJ.  Mullen,  J.,  in  his  opinion,  makes  a  care- 
ful analysis  and  review  of  Chanckllor  Walworth's  opinion  in 
Vanderkanip  v.  Shelton,  11  Paio-e  (N.  Y.),  28  (1844),  approving  it 
in  all  respects.  tSee  Brainerd  v.  Cooper,  10  N.  Y.  356  (1852) ; 
Vroom  V.  Ditraas,  4  Paige  (N.  Y.),  526  (1884);  Benedict  v.  Gil- 
man,  4  id.  58  (1883),  reviewed  and  commented  on  in  the  same 
opinion.     See  also  Belden  v.  Slade,  26  Hun  (N.  Y".),  635  (1882). 

'^  Johnson  v.  Harmon,  19  Iowa,  56  (1865),  per  Wright,  Ch.  J., 
writing  an  exhansiive  opinion.  American  Buttonhole  Co.  v. 
Burlington  M.  L.  Association,  61  Iowa,  464  (1883). 

3  McHenry  v.  Cooper,  27  Iowa,  137,  141  (1869). 

^  Peabody  v.  Roberts,  47  Barb.  (N.  Y.)  91  (1866).  In  Walsh 
V.  Rutgers  Fire  Ins.  Co.,  13  Abb.  (N.  Y.)  33  (1862),  such  a  fore- 
closure was  held  necessarv.  McKernan  v.  Neff,  43  Ind.  503 
(1873);  Coleman  v.  Witherspoon,  76  id.  285  (1881);  Chilver  v. 
Weston,  27  N.  J.  Eq.  435  (1876);  Atwater  v.  West,  28  id. 
361  (1877),  an  important  case;  Besser  v.  Hawthorn,  3  Ores".  129 
(1869);  lb.  512;  Stewart  v.  .Johnson,  30  Ohio  St.  24  (r876); 
Murphy  v.  Farwell,  9  Wis.  102  (1859).  In  Bache  v.  Pnrcell,  6 
Hun  (N.  Y^.),  518  (1876),  a  junior  mortgagee  was  allowed  to  fore- 
close, even  though  he  had  been  made  a  party  defendant  to   a 


SUBSEQUENT    MORTGAGEES    DEFENDANTS.  143 

propriety  under  the  authorities  in  conchiding  the  plain- 
tiff may  maintain  the  present  action  as  only  for  the 
foreclosure  of  his  mortgage,  notwithstanding  the  fore- 
closure and  sale  previously  had  under  the  senior  mortgage. 
This  conclusion  is  of  very  great  practical  importance 
in  cases  like  the  one  now  before  the  court,  because  it  is, 
to  say  the  least,  exceedingly  doubtful  whether  the  action 
to  redeem  can  be  brought  after  the  expiration  of  ten 
years  from  the  time  the  mortgage  debt  became  due,  or 
the  last  payment  was  made  upon  it.  *  ^-  =^  jf 
an  action  to  redeem  in  a  case  like  the  present  one  is  the 
only  action  which  the  incumbrancer  can  maintain,  and 
that  must  be  commenced  within  ten  years  after  the 
right  has  accrued,  a  legal  anomaly  after  that  will  be 
presented  of  a  party  having  a  demand  presumed  by  law 
to  be  unpaid,  without  any  legal  or  equitable  means  of 
applying  towards  its  payment  the  security  created  ex- 
pressly for  that  purpose."  ^  A  junior  mortgagee  or  in- 
cumbrancer, who  is  omitted  in  the  foreclosure  of  a  prior 
mortgage,  may  be  cut  off  by  a  strict  foreclosure  -  con- 
ducted by  the  purchaser  at  the  foreclosure  sale,  who  by 
his  purchase  of  the  premises  becomes  the  equitable 
assignee  of  the  prior  mortgage.'' 

A  junior   mortgagee,  who    owns    a  prior    mortgage, 

foreclosure  by  a  senior  niort^^agee.  But  see  Fliess  v.  Buckley, 
90  N.  Y.  28(J  (1^182),  holding  that  a  junior  mortgagee  cannot 
maintain  a  foreclosure  to  reach  surplus  moneys  arising  on  the 
foreclosure  of  a  senior  mortgaije. 

1  Peabody  v.  Roberts,  47  Barb.  (N.  Y.)  91,  102  (1866),  per  Dan- 
iels, J.,  whose  o])inion  seems  to  be  at  variance  with  Gage  v. 
Brewster,  31  N.  Y.  218  (1865). 

2  Franklyn  v.  Hay  ward,  61  IIow.  (N.  Y.)  43  (1881) ;  Brainard 
V.  Cooper,  10  N.  Y.  359  (1852). 

•''  Gage  V.  Brewster,  31  N.  Y.  218  (1865) ;  Brainard  v.  Cooper, 
10  id.  356  (18.52). 


144  PARTIES    TO    MORTGAGE    FORECLOSURES. 

must  set  forth,  in  his  complaint  to  foreclose  the  prior 
mortgage,  his  claim  upon  the  junior  mortgage,  or  it  will 
be  cut  off  by  the  action ;  he  cannot  compel  the 
premises  to  be  sold  subject  to  his  junior  mortgage. 
"  The  practice  of  the  court  requires  that  the  complain- 
ant in  his  bill  should  set  out  all  his  claims  upon  the 
mortgaged  property,  and  have  the  same  in  that  suit 
duly  litigated  and  disposed  of  by  the  decree,  and  that, 
if  he  omits  to  set  out  any  incumbrance  which  he  holds 
upon  the  premises  junior  to  the  mortgage  described  in 
the  bill,  such  junior  incumbrance  will  be  cut  off  by  a 
sale  on  a  decree  foreclosing  the  first  mortgage,  and 
making  no  allusion  to  any  further  incumbrance."  ^  A.S 
a  general  rule  a  foreclosure  bars  the  claims  of  all  per- 
sons having  liens  subsequent  to  the  mortgage  foreclosed, 
who  are  parties  to  the  suit.  The  plaintiff  is  a  party, 
and  if  he  fails  to  set  up  his  claim  on  the  junior 
mortgage,  the  neglect  is  his  own,  and  cannot  be  remedied 
by  undertaking  to  impose  a  condition  on  the  judgment 
of  foreclosure  and  sale  for  which  the  judgment  itself 
gives  no  warrant.  If  the  subsequent  mortgagee  has  re- 
leased the  mortgaged  premises  from  the  lien  of  his 
mortgage,  he  is  no  longer  a  necessary  defendant. 

§  62.  Subsequent  judgment  creditors,  still  owning  judg- 
ments, necessary. 

A  person  who  obtains  and  dockets  a  judgment  against 
the  owner  of  an  equity  of  redemption  in  mortgaged 

1  Homoeopathic  Medical  Life  Ins.  Co.  v.  Sixbury,  17  Hun  (N. 
Y.),  428  (1879),  per  Talcott,  P.  J. ;  Tower  v.  White,  10  Paige 
(N.  Y.),  39S  (1843)  ;  Roosevelt  v.  Ellithrop,  10  id.  415  ;  Wheeler 
V.  Van  Kuran,  1  Barb.  Ch.  (N.  Y.)  490  (1846) ;  Walsh  v.  Rutgers 
Fire  Ins.  Co.,  13  Abb.  (N.  Y.)  33  (1861). 


JUDGMENT  CREDITORS  NECESSARY  DEFENDANTS.    145 

premises  is  a  necessary  defendant  to  a  foreclosure  of 
the  mortgage  commenced  after  the  docketing  of  the 
judgment  ;^  a  judgment  creditor  cannot  be  joined  by 
the  mortgagee  as  a  co-plaintiff.'^  In  some  states  judg- 
ment creditors  are  held  only  proper  and  not  indispensa- 
ble parties ;  but  the  courts  which  hold  this  are  agreed 
that  a  judgment  creditor's  rights  are  not  affected,  unless 
he  is  brought  into  the  action,  and  that  his  omission 
produces  an  imperfect  title.^  In  Maryland  it  seems  to 
be  the  rule  to  make  prior  as  well  as  subsequent  incum- 
brancers parties  to  a  foreclosure.*  The  above  general 
rule  applies  if  the  foreclosure  is  conducted  by  advertise- 
ment under  the  statute  ;  all  judgment  creditors  must 
be   served  with  the  notice,''  and  if  a  judgment  is  per- 

1  Haines  v.  Beach,  3  Johns.  Ch.  (N.  Y.)  466  (1818) ;  Shaw  v. 
McNish,  1  Barb.  Ch.  (N.  Y.)  328  (1846) ;  Benedict  v.  Gilraan,  4 
Paige  (N.  Y.),  58  (1833) ;  Vrooni  v.  Ditmas,  lb.  531 ;  People's 
Bank  v.  Hamilton  Manuf.  Co.,  10  id.  481  (1843) ;  INiagaia  Bank 
V.  Roosevelt,  9  Cow.  (N.  Y.)  409  (1827) ;  Arnot  v.  Post,  6  Hill 
(N.  Y.),  65  (1843) ;  Winebrener  v.  Johnson,  7  Abb.  N.  8.  (N.  Y.) 
202  (1869)  ;  Brainard  v.  Cooper,  10  N.  Y.  356  (1852) ;  Morris  v. 
Wheeler,  45  id.  708  (1871) ;  Virdin  v  Slocum,  71  id.  345  (1877) ; 
Hubbell  V.  Sibley,  5  Lans.  (N.  Y.)  .56  (1871) ;  Alexander  v.  Green- 
wood, 24  Cal.  505  (1864);  Ritch  v.  Eichelberger,  13  Fla.  169' 
(1870) ;  Strani^  v.  Allen,  44  111.  42S  (1867) ;  Kelgoiir  v.  Wood,  64 
id.  345  (1872)^  Wylie  v.  McMakin,  2  Md.  Ch.  Dec.  413  (1848) ; 
Ducker  v.  Belt,  3  id.  13  (1850);  Hinsoii  v.  Adrian,  86  N.  C.  61 
(1882).     See  the  precedini(  section  and  notes. 

2  Felder  v.  Murphy,  2  Rich.  Eq.  (S.  C.)  58  (1845). 

'•'  Person  v.  Merrick,  5  Wis.  231  (1856).  In  Leonard  v.  Groome, 
47  Md.  499  (1877),  the  judgment  creditor  was  held  not  indispen- 
sable on  the  ground  that  he  was  presumed  to  know  of  the  senior 
mortgage,  and  therefore  to  be  able  to  protect  his  own  interests. 
See  Harris  v.  Hooper,  50  id.  537  (1878) ;  see  also  Gaines  v. 
Walker,  16  Ind.  361  (1861),  holding  a  judgment  creditor  ordy  a 
projjer  party.  See  the  preceding  section  and  the  note  on  the 
Indiana  decisions. 

4  Heuisler  v.  Nickum,  38  Md.  270  (1873) ;  Tome  v.  Mer.  Mac. 
B.  &  L.  Co.,  34  id.  12  (1870) ;  Md.  Code,  vol.  2,  art.  4,  §§  782-792. 

■>  Root  V.  Wheeler,  12  Abb.  (N.  Y.)  294  (1861). 
10 


146  PARTIES    TO    MORTGAGE    FORECLOSURES. 

fected  against  the  owner  of  the  equity  at  any  time  after 
the  first  publication  of  the  notice  and  before  the  day  of 
sale,  the  judgment  creditor  becomes  a  necessary  party 
and  must  be  served  with  the  notice.  This  ruling  is 
based  on  the  language  of  the  statute.^ 

In  a  recent  foreclosure  certain  judgment  creditors 
were  not  originally  made  parties;  but  after  the  entry 
of  judgment  they  appeared  by  attorneys,  on  whose  stip- 
ulation it  was  ordered  that  all  papers  and  proceedings 
be  amended  nunc  pro  tunc,  by  inserting  their  names  in 
the  decree,  and  that  they  be  bound  in  all  respects  by  the 
action.  The  bidder  at  the  sale  refused  to  complete 
his  purchase  on  the  ground  that  there  was  a  defect  of 
parties  in  the  omission  of  the  judgment  creditors  ;  the 
court  determined  that  it  was  incumbent  upon  the  plain- 
tiff to  establish  unequivocally  the  authority  of  the 
attorneys  to  enter  into  the  stipulation,  and  that  without 
such  authority  the  judgment  creditors  were  not  bound, 
and  the  bidder  could  not  be  compelled  to  take  the  title.^ 
The  omission  of  a  judgment  creditor,  wdio  holds  a  judg- 
ment against  the  owner  of  a  hfe  estate  in  mortgaged 
premises,  will  produce  such  a  defect  of  title  as  to  release 
a  bidder  from  his  bid  at  the  foi'eclosure  sale.'' 

If  a  judgment  is  docketed  against  a  person  who  sub- 
sequently purchases  real  estate  and  executes  a  purchase- 
money  mortgage  thereon,  the  judgment  becomes  an 
incumbrance  on  the  equity  of  redemption   subsequent 

1  Groff  V.  Morehouse,  51  N.  Y.  503  (1873). 

2  Lyou  V.  Lyon,  67  N.  Y.  250,  253  (1876),  per  Miller,  J.  8ee 
also  Waldo  v.  Williams,  2  Scam.  (111.)  471  (1840),  where  the  omis- 
sion was  corrected  b}^  an  alias  writ. 

•^  Verdin  v.  Slociim,  71  N.  Y.  345  (1877),  reversing  9  Hun,  150 
<1876). 


WHAT  CREDITORS  NOT  NECESSARY  DEFENDANTS,   147 

in  its  lien  to  the  purchase-money  mortgage,  and  the 
judgment  creditor  is  a  necessary  defendant  to  a  fore- 
closure of  the  mortgage/  Likewise  a  judgment  against  a 
person  who  in  any  way  becomes  the  owner  of  the  equity 
of  redemption  in  mortgaged  premises  becomes  a  lien 
upon  the  premises,  and  the  judgment  creditor  is  a  neces- 
sary party  in  an  action  to  foreclose  the  mortgage.  A 
judgment  is  a  lien  from  the  time  it  is  docketed,-  but  if 
the  proceedings  to  recover  the  judgment  have  not  been 
completed,  the  judgment  is  not  a  lien  and  the  judgment 
creditor  is  not  a  necessary  defendant.  Thus  a  party  who 
had  recovered  an  award  against  a  mortgagor,  but  had 
not  yet  reduced  it  to  a  judgment,  has  been  held  not  a 
necessary  party,  for  the  reason  that  he  had  no  lien  on 
the  land  f  and  where  creditors  had  perfected  their 
judgments  against  a  mortgagor  a  few  days  after  he  had 
made  a  general  assignment,  they  were  held  unnecessary 
parties,  and  though  they  were  made  parties  to  the  action, 
they  were  not  allowed  to  interpose  a  defense,  as  the 
assignee  was  the  only  necessary  defendant."*  A  creditor 
at  large  has  no  status  in  court,  and  is  not  a  necessary 
nor  a  proper  party ;  he  will  not  even  be  allowed  to  inter- 
vene on  his  own  application.^  What  is  said  here  refers 
to  money  judgments  ;  but  the  same  rules  apply  to  equit- 
able decrees  and  orders  affecting  mortgaged  premises, 
which  are  entered    in    a  "judgment   book,"   and  also 

1  Winebrenuer  V.  Johnson,  7  Abb.  N.  S.    (N.  Y.)   202   (1869); 
De  Haussure  v.  BoUmann,  7  Rich.  (S.  C.)  H29,  339  (1875). 

2  New  York  Code,  §g  1250,  1251  ;  Allen  v.  Case,  13  Wis.  621 
(1861). 

3  Jones  V.  Winans,  20  N.  J.  Eq.  96  (1869). 

4  Hpring  V.  Short,  90  N.  Y.  538,  545  (1882). 

5  People  V.  Erie  Railway  Co.,  56  How.   (N.   Y.)   122  (1878); 
Gardner  v.  Lan.sing,  28  Hun  (N.  Y.),  413  (1883). 


148  PARTIES    TO    iMORTGAGE    FORECLOSURES. 

to  the  persons  benefited  or  bound  by  such  decrees  and 
orders/  A  judgment  creditor  who  has  levied  an  execu- 
tion remains  a  necessary  party  until  the  sheriff's  certifi- 
cate of  sale  is  issued  to  the  purchaser,  and  his  judgment 
has  been  satisfied  in  full/-  An  attaching  creditor  is 
also  a  necessary  party ,'^  but  a  judgment  creditor  whose 
judgment  is  docketed  pending  the  foreclosure,  is  not  a 
necessary  defendant ;  he  may,  however,  intervene  by 
petition,  or  redeem  before  the  sale/  If  a  subsequent 
judgment  creditor  is  omitted  as  a  party  defendant,  any 
defendant  who  has  a  real  interest  in  the  premises  may 
object  by  demurrer,  if  the  defect  appears  on  the  face  of 
the  complaint,  or  by  answer  if  it  does  not  so  appear, 
and  compel  the  omitted  party  to  be  brought  into  court;^ 
This  rule  is  consistent  with  equity  practice  and  princi- 
ples, and  is  believed  to  have  its  foundation  in  the  fact 
that  if  a  judgment  creditor  were  omitted,  the  title 
offered  at  the  sale  would  be  defective,  and  no  bidder 
would  offer  as  much  as  for  a  perfect  title,  thereby  caus- 
ing a  loss  to  parties  having  an  interest  in  or  a  lien  upon 
the  equity  of  redemption. 

1  New  York  Code,  §  1236. 

2  See  §  37,  a72le.  In  point,  Bullard  v.  Leach,  27  Vt.  491" 
(1854).  In  Woods  v.  Love,  27  Mich.  308  (1854),  the  purchaser  at 
an  execution  sale,  to  whom  a  sheriff's  certificate  had  been  issued 
and  registered,  was  held  an  unnecessary  party ;  but  see  §  37, 
ant.e. 

^  Lyon  V.  8andford,  5  Conn.  547  (1825) ;  Bramhall  v.  Flood, 
41  id.  68  (1874) ;  Campion  v.  Kille,  1  McCarter  (14  N.  J.  Eq.), 
229  (1862);  2  id.  476:  Chandler  v.  Dyer,  37  Vt.  345  (1864), 
overruling  Nichols  v.  Holgate,  2  Aik.  (Vt.)  138  (1826),  and  the 
dictum  in  Downer  v.  Fox,  20  Vt.  388  (1848).  See  also  the  statute 
of  1864. 

'^  People's  Bank  v.  Hamilton  Manuf.  Co.,  10  Paige  (N.  Y.), 
482  (1843).     See  §  68,  poi^t,  on  incumbrancers  pendente  Ute. 

5  Leveridge  v.  Marsh,  30  N.  J.  Eq.  59  (1878);  Ballard  v. 
Anderson,  18  Tex.  377  (1857).     See  §  38,  ayite^  last  paragraph. 


REDEMPTION    BY    OMITTED    JUDGMENT    CREDITOR.  149 

Whenever  a  judgment  creditor  is  omitted  as  a  defend- 
ant and  the  mortgaged  premises  are  sold  under  a  decree 
of  foreclosure,  his  only  remedy  is  to  redeem,^  Under 
the  early  New  York  decisions,  a  judgment  creditor  was 
required  to  issue  a  fieri  facias,  or  execution,  against  the 
equity  of  redemption  in  order  to  obtain  a  sheriff's  cer- 
tificate of  sale  and  deed,  thereby  making  his  judgment 
a  specific  instead  of  a  general  lien,  before  he  could 
redeem ;-  but  it  is  now  well  settled  that  a  judgment 
creditor,  omitted  as  a  party  to  the  foreclosure,  may  redeem 
directly  with  his  judgment  as  a  general  lien,  instead  of 
making  it  a  specific  lien  by  execution  and  a  sheriff's 
sale.  Thus  certain  judgment  creditors  who  had  been 
omitted  as  parties  to  a  foreclosure  issued  an  execution, 

1  Braiuard  v.  Cooper,  10  N.  Y.  856  (1852) ;  Gage  v.  Brewster, 
31  id.  218  (1865) ;  Winebreiier  v.  Johnson,  7  Abb.  N.  S.  (N.  Y.) 
202  (1869);  Belden  v.  Slade,  26  Hun  (N.  Y.),  6B6  (1882);  New- 
comb  V.  Dewey,  27  Iowa,  o81  (1869)  ;  American  Buttonhole  Co. 
V.  Burlington  M.  L.  Asso.,  61  id.  464  (1883),  relying  upon  Anson 
V.  Anson,  20  id.  55  (1865);  Jones  v.  Harstock,  42  'id.  147  (1875). 
8ee  also  Rice  v.  Kelso,  57  id.  115,  118  (1881) ;  Wright  v.  Howell, 
35  id.  288,  292  (1872);  Stuart  v.  Scott,  22  Kan.  585  (1880) ;  Mar- 
tin V.  Fridley,  23  Minn.  13  (1876) ;  Pratt  v.  Frear,  13  Wis.  462 
(1861).  As  to  what  amount  must  be  paid  to  redeem,  see  Iowa 
Co.  V.  Beeson,  55  Iowa,  262  (1880).    See  also  the  preceding  section. 

*  In  New  Y^'ork  and  most  other  states  the  redemption  must  be  within 
ten  years  See  the  cases  cited  in  the  first  note  to  this  section. 
But  in  Illinois  the  redemption  must  be  within  seven  years  ;  Ewing 
V.  Ainsworth,  53  111.  464  (1870).  See  Miller  v.  Finn,  1  Neb.  254 
(1870),  holding  that  redemption  will  not  be  allowed  if  the  pur- 
chaser under  the  foreclosure  offers  to  pay  the  claim  of  the  omitted 
incumbrancer. 

2  Arnot  V.  Post,  6  Hill  (N.  Y.),  66  (1843) ;  Niagara  Bank  v. 
Roosevelt,  9  Cow.  (N.  Y.)  413  (1827) ;  Winebrener  v.  Johnson, 
supra;  Brainard  v  Cooper,  10  N.  Y.  362  (1852).  Thus,  in  Arnot 
V.  Post,  supra,  Bronson,  J.,  held  that  an  omitted  judgment 
creditor's  right  to  sell  after  the  foreclosure  is  just  as  perfect  as  it 
is  before,  and  a  sale  is  the  only  mode  in  which  he  can  assign 
his  legal  rights.  Without  a  sale  he  has  nothing-  but  a  lien,  but 
by  a  sale  the  purchaser  acquires  a  real  interest  in  the  land. 


150  PARTIES    TO    MORTGAGE    FORECLOSURES. 

and  in  time  obtained  a  sheriff's  deed  ;  they  then  brought 
an  action  to  redeem,  and  it  was  held  that  the  judgment 
creditors,  not  having  been  made  parties  to  the  action  by 
which  the  mortgages  were  foreclosed,  were  not  bound 
by  the  decree,  and  that  the  foreclosure  as  to  them  was 
utterly  void.  The  judgment  creditors  would,  there- 
fore, have  a  right  to  redeem  the  premises  from  the 
purchaser  at  the  sale  under  the  judgment  of  foreclosure, 
even  though  they  had  not  made  their  liens  specific  by 
an  execution  and  sale  upon  their  judgments.  And  the 
foreclosure  being,  under  the  decisions  of  the  Court  of 
Appeals,  utterly  void  as  to  said  judgment  creditors,  it 
necessarily  follows  that  they  had  a  right  to  issue  execu- 
tion and  sell  the  premises  under  it  in  the  same  manner 
as  if  the  mortgage  had  not  been  foreclosed  ;  and  it 
further  follows  that  the  purchaser  at  said  sale  upon 
receiving  his  deed  from  the  sheriff  acquired  a  good  title 
to  the  extent  of  the  right,  title  and  interest  of  the 
judgment  debtor  in  said  premises  at  the  time  of  the 
docketing  of  the  judgments  against  him,  or  which 
he  at  any  time  thereafter  acquired  in  the  premises.^ 
At  present  a  judgment  creditor  has  the  alternative 
practice  of  redeeming  directly  under  his  general  lien,  or 

1  Winebrener  v,  Johnson,  7  Abb.  N.  8.  (N.  Y.)  208  (1869),  per 
Freedman,  J.,  citins^  and  relying  upon  Brainard  v.  Cooper,  10 
N.  Y.  356  (1852) ;  Haines  v.  Beach,  3  Johns.  Ch.  (N.  Y.)  460 
(1818).  Brainard  v.  Cooper  was  before  the  New  York  Court  of 
Appeals  three  times  for  argument,  and  now  stands  as  the  leading 
case  upon  the  rights  of  judgment  creditors  who  are  omitted  as 
parties  to  a  foreclosure.  The  question  as  to  whether  a  naked  or 
a  general  judgment  lien  is  a  sufficient  title  to  maintain  an  action 
for  redemption  is  considered  at  length,  and  after  an  exhaustive  re- 
view of  the  English  and  American  cases,  Gardner,  J.,  writing 
the  opinion,  concludes  that  such  a  general  judgment  lien  is  a  suf- 
ficient title  without  execution  and  a  sheriff"s  deed  to  make  it 
specific. 


OWNER    OF    mechanic's    LIEN    NECESSARY.  151 

of  issuing  an  execution  and  redeeming  under  the  specific 
lien  of  a  sheriff's  deed.  A  purchaser  at  a  foreclosure 
sale,  in  his  relation  to  a  judgment  creditor,  is  deemed 
merely  an  equitable  assignee  of  the  mortgage.^  A  re- 
deeming creditor  is  now  obliged  to  pay  only  the  mort- 
gage debt,  principal  and  interest,  without  the  costs  of 
the  foreclosure ;  but  the  purchaser  at  the  foreclosure  sale 
and  his  grantees  are  entitled  to  an  accounting  of  rents, 
taxes  and  disbursements  for  improvements.- 

§  63.  Mechanic's  lien,  owner  of,  necessary. 

All  persons  holding  mechanics'  liens,  which,  as  incum- 
brances upon  the  mortgaged  premises,  are  subsequent 
to  the  mortgage,  are  necessary  parties  to  an  action  to 
foreclose.^'^  It  may  not  always  be  easy  to  determine 
whether  a  mechanic's  lien,  as  a  lien  upon  the  premises, 
is  subsequent  to  the  mortgage,  but  questions  affecting 
that  subject  cannot  be  discussed  here ;  for  the  purposes 
of  this  work  it  is  assumed  that  the  mechanic's  lien  is 
subsequent.  A  mechanic's  lien  is  a  special  statutory 
charge  upon  real  estate,  peculiar  to  American  law ;  the 
English  law  knows  no  such  lien.^  As  the  various  states 
have  regulations  of  their  own,  and  the  statute  jaws  of 
New  York  concerning  mechanics'  liens  are  so  confused 
and  inharmonious  for  different  parts  of  the  state,  it  is 

^  Brainard  v.  Cooper,  supra;  Arnot  v.  Post,  6  Hill  (N.  Y.), 
67  (1843). 

2  Brainard  v.  Cooper,  supra;  Gage  v.  Brewster,  31  N.  Y.  218 
(1865) ;  Winebrener  V.  Johnson,  7  Abb.  N.  S.  (N.  Y.)  211  (1869). 

=*  Emi^a-ant  Industrial  W.  Bank  v.  Goldman,  75  N.  Y.  127,  129" 
(1878);  Payne  v.  Wilson,  74  id.  348  (1878);  Jones  v.  Harstock,. 
42  Iowa,  147  (1875) ;  Jones,  §  479  a. 

*  Kneeland  on  Mechanics'  Liens,  pp.  8-18. 


152  PARTIES    TO    MORTGAGE    FORECLOSURES. 

impossible  to  state  any  very  general  rules  affecting 
them,  except  that  a  notice  of  the  lien  is  uniformly 
required  to  be  filed  in  the  office  of  the  clerk  of  the 
county  where  the  premises  are  situated,  and  that  a 
mortgagee  foreclosing  is  bound  to  take  notice  of  no  liens 
except  those  which  are  filed  subsequent  to  the  execution 
of  his  mortgage  and  prior  to  the  commencement  of  the 
action  and  the  filing  of  the  lis  pendens.  The  rules  of 
law  and  practice  which  have  been  stated  as  applying  to 
subsequent  mortgagees  and  judgment  creditors,  it  is 
believed,  apply  with  equal  force  to  the  owners  of 
mechanics'  liens. 

§  64.  Subsequent  mortgagee,  judgment  creditor  or  other 
lienor,  an  assignor  no  longer  holding  the  incum- 
brance, and  intermediate  assignors,  not  necessary. 

No  principle  of  law  or  practice  is  more  familiar  than 
that  only  those  parties  who  are  interested  in  the  sub- 
ject-matter of  an  action  should  be  brought  before  the 
court.  It  is  almost  axiomatic  that  a  subsequent  lienor, 
who  has  parted  absolutely  with  his  lien,  can  have  no 
interest  in  an  action  to  foreclose  a  prior  mortgage. 
There  are  almost  no  cases  which  pointedly  support  this 
proposition  ;  but  it  is  beyond  dispute,  as  reasoned  from 
analogous^  cases,  that  the  proposition  is  true.     Chan- 

1  Whitney  v.  McKiniiey,  7  Johns.  Ch.  (N.  Y.)  144  (1823); 
Christie  V.  Herrick,  1  Barb.  Ch.  (N.  Y.)  255  (1845)  ;  Ward  v. 
Van  Bokkelen,  2  Pai^e  (N.  Y.),  289  (1830) ;  Andrews  v.  Gilles- 
pie, 47  N.  Y.  487  (1872).  These  cases  are  quoted  from  in  §§  75, 
76  and  77,  po^t.  They  uniformly  hold  that  a  mortgagee  who 
has  made  an  absolute  and  unconditional  assignment  of  his  mort- 
gage is  not  a  necessary  party  to  an  action  brought  to  foreclose 
the  same  mortgage.  If  such  a  mortgagee  and  assignor  is  not  a 
necessary  party,  it  must  certainly  follow  that  a  subsequent  mort- 


ASSIGNOR    OF    A    JUNIOR    LIEN    NOT    NECESSARY.        153 

cellor  Kent  has  held  it  as  a  general  j^rinciple  "  that  a 
person  who  has  no  interest  in  the  suit  and  is  a  mere 
witness,  against  whom  there  could  be  no  relief,  ought 
not  to  be  a  party ;  "^  and  further,  where  an  assignment 
is  absolute  and  "  the  mortgagee  parts  with  all  his  inter- 
est in  the  mortgage,  and  there  is  nothing  special  and 
peculiar  in  the  case,  that  there  is  no  necessity  to  make 
the  mortgagee  a  party  to  a  bill  to  foreclose."  More- 
over, if  the  assignment  were  absolute  and  uncondi- 
tional on  its  face,  while  the  mortgagee  retained  some 
equitable  interest  in  the  mortgage,  it  would  be  unjust 
and  contrary  to  first  principles  to  hold  a  j^rior  mort- 
gagee foreclosing  responsible  for  not  taking  notice 
of  equities  existing  between  a  subsequent  mortgagee  and 
his  assignee  when  he  had  no  knowledge  of  the  same. 
If,  however,  knowledge  of  such  equities  were  brought 
to  the  mortgagee  foreclosing,  it  would  be  dangerous  for 
him  to  omit  either  the  assignor  or  the  assignee  of  the 
subsequent  mortgage.  If  a  junior  mortgagee  has  been 
paid  in  full,  he  is,  of  course,  no  longer  a  necessary  or 
proper  defendant.-  All  that  has  been  said  in  this  section 
with  reference  to  subsequent  mortgagees  and  their 
assignees  applies  with  equal  force  to  subsequent  holders 
of  judgments,  mechanics'  and  other  liens,  and  their 
assignees.'^ 

gagee,  who  has  parted  with  his  entire  interest  in  the  mortgage, 
is  not  a  necessary  party  to  an  action  brought  to  foreclose  a  prior 
mortgage.  Most  in  point,  see  Winslow  v.  McCall,  32  Barb.  (N. 
Y.)  241  (18H0),  relying  upon  Wetmore^v.  Roberts,  10  How.  (N. 
Y  )  51  (1855). 

1  Whitney  v.  McKiiniey,  7  Johns.  Ch.  (N.  Y.)  147  (1823). 

2  Jones,  §  1430;  McHenry  v.  CJooper,  27  Iowa.  137  (1869). 

3  In  McKee  v.  Murphy,  34  «upr.  Ct.  (N.  Y.)  261  (1872),  though 
a  judgment  creditor  had  assigned  his  judgment  with  a  power  of 


154  PARTIES    TO    MORTGAGE    FORECLOSURES. 

The  principles  of  law  stated  in  this  and  the  immedi- 
ately succeeding  sections  are  so  axiomatic  to  the  prac- 
ticing attorney,  and  are  so  little  discussed  by  writers  on 
the  subject  of  this  work,  that  it  may  seem  useless  to 
mention  them  here ;  but  the  headings  of  these  sections 
seemed  necessary  to  the  author,  in  order  to  sustain  and 
preserve  the  logical  analysis  and  arrangement  of  the 
subject.  A  slight  examination  will  show  that  the  anal- 
ysis of  this  chapter  follows  in  many  respects  that  of 
the  first  chapter  of  this  part  of  the  work.  The  object 
of  this  is  to  embrace  every  possible  and  conceivable 
case  of  an  incumbrance  that  could  arise,  whether  the 
courts  have  rendered  decisions  upon  it  or  not. 

§  65.  Subsequent  mortgagees  or  other  lienors,  still  holding 
any  kind  of  an  equitable  or  contingent  interest  in 
the  lien,  or  being  part  or  joint  owners,  generally- 
necessary . 

Whenever  a  person  holding  a  subsequent  mortgage, 
judgment  or  other  lien  on  mortgaged  premises  assigns 
» his  lien  conditionally,  as  a  collateral  security  or  other- 
wise, so  that  he  retains  an  equitable  interest  in  it,  he  is 
a  necessary  party  to  an  action  to  foreclose  a  prior 
mortgage.^  The  assignee  of  the  subsequent  mortgage 
lien  is  also  a  necessary  party.     It  is  believed,  however, 

attorney,  he  was  held  a  necessary  defendant,  the  power  of  attor- 
ney not  operating  as  an  absolute  assignment. 

1  In  Blair  &  Co.  v.  Mai'sh,  8  Iowa,  144  (1859),  the  assignor  and 
the  assignee  of  a  "  title  bond  "  were  both  made  parties  to  the 
foreclosure  of  a  prior  existing  mortgage,  the  title  bond  having 
been  assigned  merely  as  a  collateral  security.  A  junior  mort- 
gagee, who  has  assigned  his  mortgage  as  a  collateral  security, 
may  redeem  from  a  senior  mort^'agee  foreclosing  ;  Manning  v. 
Markel,  19  Iowa,  103  (1865). 


CONDITIONAL    ASSIGNOR    OF    JUNIOR    LIEN.  155 

that  this  proposition  should  be  qualified  to  the  effect 
that  the  plaintiff  to  the  foreclosure  must  have  notice 
from  the  record  or  otherwise  of  the  character  and  con- 
ditions of  the  assignment.  The  reason  for  this  rule 
evidently  is,  that  all  outstanding  interests  in  the  equity 
of  redemption  by  lien  or  otherwise  must  be  reached  and 
covered  by  the  action.  The  law  sustaining  the  propo- 
sition of  this  section  is  analogous  in  principle  to  that 
which  requires  a  mortgagor  who  has  apparently  parted 
with  his  equity  of  redemption,  but  still  holds  an  equi- 
table interest  in  it,  to  be  made  a  defendant  to  a  fore- 
closure.^ 

There  is  another  line  of  cases-  which,  by  analogy, 
support  the  proposition  of  this  section.  They  uniformly 
hold,  where  a  mortgage  is  assigned  as  a  collateral  se- 
curity, and  an  action  to  foreclose  is  commenced  by  the 
assignee  or  the  assignor,  the  other  refusing  to  become  a 
co-plaintiff,  that  he  can  and  must  be  made  a  party  de- 
fendant to  the  action,  for  the  reason  that  otherwise  a 
perfect  decree  could  not  be  "  made  which  would  protect 
the  mortgagor  and  the  purchaser  of  the  mortgaged 
premises  from  any  future  claims  which  the  assignor 
might  make.""  If  this  law  is  good  for  a  prior  mortgage 
under  foreclosure,  why  is  it  not  equally  good  for  a  sub- 
sequent mortgage,  under  precisely  the  same  circum- 
stances ?     The  only  difference  is,  that  in  the  foreclosure 

1  See  §  37,  ante. 

2  Slee  V.  Manhattan  Company,  1  Paige  (N.  Y.),  48  (1828) ; 
Christie  v.  Herrick,  1  Barb.  Ch.  (N.  Y.)  254  (1845)  ;  Kittle  v. 
Van  Dyck,  1  Sandf.  Ch.  (N.  Y.)  76  (1843) ;  Andrews  v.  Gillespie, 
47  N.  Y.  487  (1872) ;  Bloomer  v.  8turges,  58  id.  168,  177  (1874). 
See  §§  78  and  79,  pod,  and  the  notes  and  cases  cited. 

3  Christie  v.  Herrick,  1  Barb.  Ch.  (N.  Y.)  254,  259  (1845),  per 
Chancellor  Walworth. 


156  PARTIES    TO    MORTGAGE    FORECLOSURES. 

of  the  prior  mortgage,  the  mortgagee  and  the  assignee 
are  cognizant  of  the  equities  between  them,  while  in 
the  latter  case  the  plaintiff  may  have  no  knowledge  of 
the  equities  existing  between  the  subsequent  mortgagee 
and  his  assignee. 

§  66.  Assignee  of  subsequent  mortgage,  judgment  or  other 
lien,  necessary. 

A  party  who  acquires  unconditionally,  by  assignment 
or  otherwise,  the  whole  of  a  junior  mortgage,  judgment 
or  other  lien  upon  mortgaged  premises,  becomes  at  once 
the  party  in  interest  in  place  of  the  lienor,  and  is  conse- 
quently a  necessary  defendant  in  an  action  to  foreclose 
a  prior  mortgage.^  This  proposition,  like  those  stated 
in  the  two  preceding  sections,  is  deduced  from  general 
principles  of  law  quite  as  much  as  it  is  induced  as  a 
conclusion  from  adjudged  cases.  Chancellor  Walworth, 
however,  has  held  in  an  action  to  foreclose  a  mortgage 
that  "  it  is  now  well  settled,  at  least  in  this  state,  that 
after  an  absolute  assignment  of  a  chose  in  action  the 
assignee,  at  law  as  well  as  in  equity,  is  considered  the 
real  party  to  the  suit.  A  decree  in  equity  between 
the  defendant  and  the  assignee  would  now  have  the 
same  effect  in  a  court  of  law  as  if  the  assignor  was  a 
party  to  such   decree."-     "  This  court  does  not  look  at 

1  In  point,  Winslow  v.  McCall,  32  Barb.  (N.  Y.)  241  (1860), 
relying  upon  Wetmore  v.  Roberts,  10  How.  (N.  Y.)  51  (1855), 
which  hohls  further  that  the  assignee  may  redeem,  the  same  as 
the  original  lienor,  if  he  is  omitted  as  a  defendant.  In  point, 
Agustine  v.  Doud,  1  111.  App.  588  (1877).  See  also  White  v.  Bart- 
lett,  14  Neb.  320  (1883),  where  the  assignment  was  not  recorded 
and  the  plaintifi'  had  no  knowledge  of  it ;  the  action  was  held  to 
cut  olf  the  subsequent  mortgage,  although  the  assignee  was  not 

.  made  a  defendant. 

2  Ward  V.  Van  Bokkelen,  2  Paige  (N.  Y.),  289,  295  (1830).  A 
note  to  this  decision  by  Mr.  Paige,  the  reporter,  gives  an  exhaust- 


ASSIGNEE    OF    JUNIOR    LIEN    NECESSARY.  157 

the  nominal  parties  to  a  contract.  They  look  at  the  real 
parties  to  it  at  the  time  the  suit  is  commenced — the 
parties  in  actual  interest — and  recognize  their  rights  in 
the  same  manner  as  if  the  contract  was  executed  by  or 
to  them.  Thus  the  assignee  of  a  chose  in  action  is 
recognized  as  the  real  party,  and  this  court,  rejecting 
all  legal  fictions,  treats  him  as  such,  and  insists  that 
the  suit  shall  be  brought  in  his  name."^  The  law  sup- 
porting the  proposition  stated  in  this  section  is  anal- 
ogous to  that  which  makes  the  purchaser  and  owner  of 
the  equity  of  redemption  by  grant  from  a  mortgagor  a 
necessary  party  to  a  foreclosure ;-  the  only  difference 
being  that  in  the  latter  case  the  defendant  holds  the  fee 
title,  while  in  the  former  he  held  only  a  lien  on  the  fee. 

§  67.  Assignee  of  subsequent  mortgage  or  lien  pendente 
lite  not  necessary. 

A  person  wdio  during  the  pendency  of  an  action  to 
foreclose  a  mortgage  purchases  a  mortgage,  judgment  or 
other  incumbrance  upon  the  mortgaged  premises,  which 
is  subsequent  in  its  lien  to  the  mortgage  under  fore- 
closure, is  not  a  necessary  party  to  the  action,  and  the 
plaintiff  will  not  be  obliged  to  bring  such  a  purchaser  be- 
fore the  court  f  the  purchaser  may,  however,  as  he  suc- 

ive  discussion  of  the  question  of  the  assignment  of  choses  in 
action,  citing  many  cases  in  chronological  order  from  English  and 
American  reports,  showing  that  in  the  early  part  of  this  century 
the  assignor  still  remained  a  necessary  party,  while  the  assignee 
was  hardly  deemed  proper. 

1  Western  Reserve  Bank  v.  Potter,  Clarke  Ch.  (N.  Y.)  437 
(1841),  per  Vice-chancellor  Whittlesey. 

'^  Hee  §  38,  ante. 

^  In  point,  Case  v.  Bartholow,  21  Kan.  300  (1878),  where  a  sub- 
sequent mortgage  was  purchased  pending  the  foreclosure  of  a 
prior  mortgage. 


158  PARTIES    TO    MORTGAGE    FORECLOSURES. 

ceeds  to  all  the  rights  of  the  subsequent  lienor,  appear 
and  defend  in  the  name  of  the  party  from  whom  he  ac- 
quires his  lien,  or  be  substituted  on  application  in  his 
place. ^  The  statutory  enactments  of  the  Code,  which 
were  discussed  in  the  preceding  chapter  as  applying  to 
the  equity  of  redemption,  aj)ply  with  equal  force  to  liens 
upon  that  equity.'-  To  sustain  the  proposition  stated  in  this 
section,  resort  must  be  had  to  the  principle  of  analogy, 
as  there  are  no  reported  cases  bearing  directly  upon  the 
point.  As  has  been  shown,  the  purchaser  of  the  equity 
of  redemption  in  mortgaged  premises,  during  the 
pendency  of  an  action  to  foreclose,  is  not  a  necessary 
defendant ; '  no  reason  presents  itself  why  the  purchaser 
of  a  lien  on  the  same  equity  of  redemption  under  similar 
circumstances  should  be  made  a  defendant.  It  is  assumed, 
of  course,  that  the  assignor  of  the  purchaser  pendente  lite 
is  a  party  defendant  to  the  action  ;  a  purchaser  pe?idente 
lite,  if  his  assignor  is  not  a  party  to  the  action,  is  no 
more  bound  by  the  decree  of  foreclosure  than  would  be 
the  assignor  himself.  The  assignee  of  a  mortgage  is 
an  incumbrancer  within  §  1671  of  the  New  York  Code 
of  Civil  Procedure,  and  if  he  takes  title  by  assignment 

1  See  Koch  v.  Piircell,45  Supr.  Ct.  (X.  Y.)  162  (1879),  as  1o  the 
rights  of  siich  an  assignee  with  reference  to  the  action,  and  any- 
surplus  arising  on  the  sale.  See  Fisher,  §i5  880-388,  and  the  Eng- 
lish cases  cited.  See  §§  41  and  42,  ante,  where  a  discussion  of  the 
common-law  doctrine  of  Us  pendens  and  of  the  statutory  enact- 
ments in  the  various  states-  is  given.  It  may  be  generally  stated 
that  the  principles  of  law  there  presented,  as  applying  to  the 
purchaser  of  the  equity  of  redemption  in  mortgaged  premises 
during  an  action  to  foreclose,  apply  also  to  a  purchaser  of  the  lien 
on  the  same  equity  during  the  foreclosure.  The  statute  of  lis 
pendens  in  New  York  also  unquestionably  supports  this  proposi- 
tion. 

^  See  §  42,  ante. 

3  See  §  42,  ante.  * 


INCUMBRANCER    PENDENTE    LITE    NOT    NECESSARY.       159 

after  (or  records  his  assignment  subsequently   to)  the 
filing  of  a  lis  pendens,  he  is  chargeable  with  notice.^ 

§  68.  Incumbrancer  pendente  lite  not  necessaiy. 

Likewise  it  is  reasoned  by  analogy  that  a  person  who 
obtains  a  lien  by  mortgage,  judgment'-  or  otherwise  upon 
the  equity  of  redemption  in  mortgaged  premises,  during 
the  pendency  of  an  action  to  foreclose,  is  not  a  neces- 
sary party  to  the  action,  providing  it  was  commenced^  or 
the  lis  pendens  was  filed*  before  the  lien  was  obtained  or 
recorded;^  In  such  a  case,  however,  while  the  plaintiff 
is  not  bound  to  bring  the  incumbrancer  before  the  court, 
the  incumbrancer  himself  may  intervene  by  petition  at 
any  time  before  sale,  and  if  allowed  by  the  court  to 
come  in  at  all,  he  will  obtain  as  good  and  perfect  a  stand- 
ing in  the  case  as  any  other  joarty,  and  may  defend  if 
he  has  a  defense  to  offer.*^ 

1  Hovey  v.  Hill,  3  Lans.  (N.  Y.)  107  (1870);  Lamont  v. 
•Cheshire,  6'  N.  Y.  39  (1875). 

2  Montgomery  V.  Birge,  31  Ark.  491  (1876);  Linn  v.  Patton, 
10  W.  Va.  187  (1877). 

3  Lyon  V.  Hanford,  5  Conn.  548  (1825). 

*  Fuller  V.  Hcribner,  16  Hun  (N.  Y.),  130  (1878)  ;  aff"d  76  N. 
Y.  190  (1879). 

5  Bank  of  U.  S.  v.  Carroll,  4  B.  Mon.  (Ky.)  50  (1843).  Hee 
§  42,  ante. 

6  F.  and  M.  Bank  of  Milwaukee  v.  Luther,  14  Wis.  96  (1861). 
See  People's  Bank  v.  Hamilton  Mfg.  Co.,  10  Paige  (N.  Y.),  481 
(1843),  where  a  creditor  obtained  a  judgmenr  against  the  owner 
of  the  equity  of  redemption,  atid  docketed  the  same  about  a 
week  after  the  decree  of  foreclosure  was  entered,  but  before  the 
sale  ;  a  lis  pefidens  had  been  duly  filed  at  the  commencement  of 
the  action.  Execution  was  issued  and  the  judii'ment  creditor  bid 
in  the  premises  ;  he  thereupon  presented  to  the  court  his  petition, 
setting  forth  all  the  facts  of  the  case  and  his  defense.  Chan- 
cellor Walworth  recognized  the  petition,  and  held  it  to  be  the 
proper  practice  and  procediu-e,  but  refused  to  allow  the  judgment 
creditor  to  intervene,  for  the  reason  that  his  petition  did  not  state 
a  defense  in  proper  form. 


160  PARTIES    TO    MORTGAGE    FORECLOSURES. 

A  lis  pendens  is  not  effective  till  the  complaint  is  filed, 
and  the  complaint  cannot  he  filed  nunc  pro  tunc  so  as  to 
afiect  the  rights  which  a  judgment  creditor  may  have  ac- 
quired in  the  meantime.^  In  a  case  where  a  judgment 
had  been  recovered  and  docketed  against  the  owner  of  the 
equity  of  redemption  in  mortgaged  premises,  after  the 
f}\ingo^  -ei  lis  pendens  and  the  service  of  the  summons  upon 
one  or  more  of  the  defendants,  but  prior  to  the  service 
upon  the  owner  of  the  equity,  the  court  would  not 
relieve  the  bidder  at  the  sale  of  his  bid,  on  the  ground 
of  a  defect  of  parties  to  the  action  ;  the  judgment  cred- 
itor was  not  a  necessary  party."  In  another  case,  where 
no  lis  pendens  had  been  filed  and  a  judgment  was  recov- 
ered and  docketed  between  the  time  of  entering  the 
decree  of  foreclosure  and  the  day  of  sale,  it  was  held 
that  the  judgment  creditor  could  merely  redeem  at  any 
time  before  the  sale,  but  that  thereafter  his  rights 
would  be  effectually  barred.^  In  the  foreclosure  of  a 
senior  mortgage  the  owner  of  a  junior  recorded  mort- 
gage was  omitted  as  a  party,  as  the  deed  from  the 
original  mortgagor  to  the  person  executing  tlie  junior 
mortgage  had  not  been  recorded,  and  the  senior  mort- 
gagee had  no  notice  of  the  deed  or  subsequent  mort- 
gage from  the  record  or  otherwise;  the  rights  of  the 
junior  mortgagee   were  held   concluded  and  cut  off*  by 

1  Weeks  v.  Tomes,  16  Hun  (N.  Y.),  349 ;  atf'd  76  N.  Y.  601 
(1879). 

2  Fuller  V.  Scribner,  76  N.  Y.  190  (1879),  aff'g  16  Hun,  130, 
and  d'stinguishing  Rogers  v.  Bonner,  45  N.  Y.  379  (1871);  the 
judgement  creditor  was  a  subsequent  incumbrancer  within  the 
meaning  of  §§  1670  and  1671  of  the  New  York  Code. 

3  McHe;iry  v.  Cooper,  27  Iowa,  137,  146  (1869).  iSee  Pratt  v. 
Pratt,  96  111.  184  (1880),  where  a  second  mortgage  was  executed 
pendin^t^  a  foreclosure. 


SUBSEQUENT    LIENOR,    A    MARRIED    WOMAN.  161 

the  action/  In  another  case  the  owner  of  a  recorded 
unindexed  second  mortgage  was  omitted  as  a  party 
defendant  to  the  foreclosure  of  a  prior  mortgage,  and 
the  foreclosure  was  held  void  as  to  him.- 

§  69.  Subsequent  mortgagee  or  lienor  a  married  vroman. 
does  not  alter  rule  ;  necessary. 

Mortgages,  judgments  and  all  other  liens  upon  real 
estate  are  now  unquestionably  personal  property.  At 
common-law  the  husband  became  upon  marriage  the 
owner  of  his  wife's  personal  property,  including,  of 
course,  mortgages,  judgments,  etc.,  even  though  they 
were  placed  in  the  wife's  name  after  marriage.  In  an 
action  to  foreclose  a  prior  mortgage  the  husband  of 
a  woman  who  held  a  subsequent  incumbrance  was,  un- 
doubtedly, necessary  as  a  party  defendant  to  the  action  ; 
she  was  also  a  necessary  party.  The  common-law 
rule  has,  however,  been  so  completely  superseded  that  it 
is  believed  there  is  no  state  in  America  where  it  is  now 
in  force.  It  is  safely  asserted  that  the  husband  of  a 
feme  covert,  who  holds  a  subsequent  lien  upon  premises 
under  foreclosure  by  a  prior  mortgagee,  is  not  a  neces- 
sary party  to  the  action.  The  wife,  however,  who 
holds  the  lien  in  her  own  name,  is  always  as  necessary 
a  party  as  though  she  were  a  feme  sole.^  Likewise,  the 
wife  of  a  person  holding  a  subsequent  lien  is  not  a 
necessary  party,  as  she  has  no  interest  in  it.* 

1  Kipp  V.  Brandt,  49  How.  (N.  Y.)  358  (1875). 

2  Mutual  Life   ins.   Co.   v.  Dake,   1  Abb.   N.   C.  (N.  Y.)  380 
(1876);  art'd  87  N.  Y.  257  (188  ij. 

■'  See  §§61  and  62,  ante. 

4  See  Kay  v.  Whittaker,  44  N.  Y.  565  (1871). 

11 


162  PARTIES    TO    MORTGAGE    FORECLOSURES. 

§  70.  Heirs,  devisees,  legatees  and  annuitants  of  deceased 
subsequent  mortgagee  or  lienor  generally  not 
necessary. 

Under  the  statutes  of  no  state  do  the  heirs  at  law  receive 
the  legal  title  and  possession  of  the  personal  property 
of  a  deceased  person.  It  is  the  theory  of  American  law 
that  upon  a  person's  death  the  title  to  all  his  personal 
property  vests  in  an  executor  or  administrator,  while 
the  title  to  his  real  property  always  vests  in  his  heirs  or 
devisees.  Consequently  the  heirs  and  devisees  of  a 
decedent,  who  at  the  time  of  his  death  held  a  subsequent 
lien  upon  mortgaged  premises,  are  neither  necessary  nor 
proper  parties  to  an  action  to  foreclose  a  prior  mortgage.^ 
In  an  action  where  the  heirs  and  the  executors  of  a 
deceased  subsequent  mortgagee  were  all  made  parties  to 
the  foreclosure  of  a  prior  mortgage,  it  was  held,  where 
the  question  was,  whether  the  plaintiff  could  tax  costs 
for  five  defendant  [heirs,  that  "  there  was  no  necessity 
nor  any  apparent  excuse  for  making  the  five  children  of 
the  subsequent  mortgagee  parties.  The  executor  fully 
represented  the  rights  of  the  decedent  as  a  junior  mort- 
gagee, and  the  heirs  at  law  should  not  have  been  made 
defendants.  The  extra  costs  of  making  them  parties 
must  therefore  be  disallowed."'^  The  same  proposition 
is  also  true  of  devisees,  legatees  and  annuitants,  under 
a  will,  for  they  take  no  title  to  the  subsequent  lien,  as 
it  passes  at  once  to  the  executor,  unless  it  is  bequeathed 
specifically  to  the  devisee,  legatee  or  beneficiary,  in 
which  case  he,  as  the  immediate  owner  of  the  same, 

1  Shaw  V.  McNish,  1  Barb.  Ch.  (N.  Y.)  328  (1846).  See  §§  48, 
49  and  50,  ante,  and  the  cases  cited. 

^  Shaw  V.  McNish,  supra,  per  Chancellor  Walworth. 


PERSONAL    REPRESENTATIVES    OF    JUNIOR    LIENOR.      163 

would  become  a  necessary  defendant.  The  beneficiary, 
in  such  a  case,  takes  title  directly,  as  he  would  by  a 
specific  assignment  from  the  testator  in  his  life-time.^^^'  ' 

§  71.  Executors  and|administrators|of  a  cleceased|subse- 
quent  mortgagee  or  lienor  necessaiy. 

As  has  been  previously  stated,  the  entire  personal 
estate  of  a  decedent,  both  at  law  and  in  equity,  includ- 
ing mortgages,  judgments  and*  all  kinds  of  liens  upon 
real  estate,  vests  in  his  personal  representatives, — that 
is,  in  his  executors  or  administrators.  Without  excep- 
tion in  any  state  in  the  Union  the  executor  or  adminis- 
trator takes  the  entire  legal  title  to  all  kinds  of  liens 
created  upon  real  estate.  Of  course,  the  title  which  a 
personal  representative  has  in  the  goods  of  a  decedent 
is  not  the  absolute  ownership  which  a  person  has  in  his 
own  property  ;  nevertheless  the  law  treats  the  personal 
representative  as  the  absolute  owner,  with  full  control 
and  power  of  disposition,  as  if  the  property  were  his 
own.  It  easily  follows  that  the  executor  or  adminis- 
trator of  a  deceased  subsequent  mortgagee  or  lienor  is 
a  necessary  defendant  in  an  action  to  foreclose  a  prior 
mortgage,  representing,  as  he  does,  the  entire  interest  of 
the  junior  lienor.^     If  a  subsequent  lien  is  specifically 

1  III  Jeneson  v.  Jeuesoii,  66  111.  260  (1872,)  a  decedent  gave  one 
of  several  notes  secured  by  a  mortgage  to  an  heir,  who  was  held  a 
necessary  defendant  to  the  foreclosure  of  a  prior  morts^age. 

2  Lockman  v.  Reilly,  95  N.  Y.  64  (1884)  ;  Shaw  v.'McNish,  1 
Barb.  Ch.  (N.  Y).  326  (1846),  quoted  from  in  the  preceding  sec- 
tion ;  Ger.  Sav.  Bank  v.  Muller,  10  Week.  Dig.  (N.  Y.)  67  (1880) ; 
White  v.  Rittemeyer,  30  Iowa,  268,  272  (1870),  citing  many  cases 
and  authorities.  Shields  v.  Keys,  24  id.  298,  307  (1868),  was 
a  foreclosure  of  a  mechanic's  lien,  citing  Baldwin  v.  Thompson, 
15  id.  504  (1864),  and  Barton  v.  Hintrager,  18  id.  348  (1865).  See 
§§  48,  49  and  50,  ante.      In    Lockman    v.   Reilly,    95   N.  Y.   64 


164  PARTIES    TO    MORTGAGE    FORECLOSURES. 

bequeathed,  the  beneficiary  becomes  a  necessary  party 
in  place  of  the  executor.  If  a  subsequent  lienor  dies 
during  the  pendency  of  an  action  to  foreclose,  the  action 
must  be  revived  against  his  personal  representatives. 
It  is  intimated  that  if  a  deceased  subsequent  lienor  was 
a  non-resident  of  the  state,  the  plaintiff  foreclosing  may 
take  out  letters  of  administration  for  the  purposes  of  the 
action  in  the  county  where  the  mortgaged  premises  are 
situated  ;^  but  provision  is  made  in  the  practice  of  most 
states  for  serving  the  summons  upon  non-residents  by 
publication  or  otherwise. 

If  no  administrator  or  executor  has  been  appointed 
or  has  qualified  as  the  personal  representative  of  a  de- 
ceased subsequent  mortgagee  or  lienor,  it  is  doubtful 
whether  the  plaintiff  foreclosing  a  prior  mortgage  can 
properly  and  safely  rely  upon  making  only  the  heirs 
at  law  and  next  of  kin  of  the  subsequent  lienor  parties 
defendant  to  the  action.  This  practice  is  sometimes 
resorted  to  where  the  heirs  at  law  and  next  of  kin  are 
few  in  number  and  can  be  easily  served ;  they  are,  in- 
deed, the  actual  and  ultimate  owners  of  the  subsequent 
lien,  but,  as  has  been  seen,  they  are  neither  necessary  nor 
proper  parties  where  there  is  a  personal  representative."- 
Even  though  it  may  be  inconvenient,  and  may  often 
necessitate  considerable  delay,  it  is  nevertheless  the  safest 

(1884),  per  Rapallo  J.,  the  premises  were  bought  in  by  an  executor 
who  was  plaintiff  in  the  foreclosure  of  a  junior  mortgage  ;  on  the 
foreclosure  of  the  senior  mortgage  the  executor  of  the  junior 
mortgagee  was  held  the  only  necessary  defendant,  as  the  real 
estate  was  to  be  regarded  as  personalty. 

-  Jones,  §  1428.  In  point,  Lothrop's  Case,  33  N.  J.  Eq.  246 
(1880). 

~  8ee  the  preceding  section  ;  Fisher,  §  359  ;  Whittla  v.  Halli- 
day,  4  Dru.  and  War.  (Eng.)  267  (1827). 


ASSIGNEE    IN    BANKRUPTCY    OF    JUNIOR    LIENOR.         165 

practice  and  the  one  here  recommended,  to  cause  an 
administrator  of  such  deceased  subsequent  lienor  to  be 
appointed  before  the  action  to  foreclose  is  commenced, 
or  at  least  before  it  proceeds  to  judgment.^ 

§  72.  Assignee  in  bankruptcy  and  voluntary  general 
assignee  of  subsequent  mortgagee  or  lienor 
necessary. 

The  case  of  Bard  v.  Poole'  holds  quite  pointedly  that 
an  assignee  in  bankruptcy,  who  receives  from  his 
assignor  an  interest  in  a  mortgage,  is  a  necessary  de- 
fendant in  an  action  for  the  foreclosure  of  a  prior 
mortgage.  To  sustain  the  proposition  of  this  sec- 
tion, resort  is  again  had  to  reasoning  by  analogy, 
upon  which  so  much  of  this  chapter  is  dependent.  The 
same  rules  and  illustrations  which  have  shown  an 
assignee  in  bankruptcy  of  the  owner  of  the  equity  of 
redemption^  in  mortgaged  premises  to  be  a  necessary 
defendant  in  an  action  to  foreclose,  apply,  it  is  believed, 
with  equal  force  to  an  assignee  in  bankruptcy  of  a  person 
holding  a  lien  upon  the  same  equity  of  redemption  ;  the 
assignee  is  equally  a    necessary    party  in  both  cases.* 

1  In  point,  Lothrop's  Case,  33  N.  J.  Eq.  246  (1880),  where  lim- 
ited administration  was  granted  for  the  purposes  of  the  foreclosure. 
See  Roger  v.  Weakly,  2  Port.  (Ala.)  516  (1835).  In  point,  Fisher, 
§  369.  See  Long  v.  Storie,  23  L.  J.  (Oh.)  N.  S.  (Eng.)  200  (1853), 
where  a  creditor  was  appointed  administrator  for  the  purposes  of 
the  action. 

2  12  N.  Y.  495,  507  (1855),  per  Denio,  J. 
^  See  §  55,  ante. 

■*  Reference  is  had  to  §  Q6,  ante,  where  it  appears  that  the 
assignee  of  a  subsequent  lien  by  sale  and  transfer  is  a  neces- 
sary party.  The  same  title  and  interest  being  transferred  to  an 
assignee  in  bankruptcy,  no  reason  presents  itself  why  the  assignee 
in  bankruptcy  is   not  also   a   necessary  defendant.     From   the 


166  TARTIES    TO    MORTGAGE    FOREOLOSURES. 

The  same  rules  apply  to  assignees  by  voluntary  general 
assignment  and  to  receivers  of  insolvent  corporations. 
If  the  assignee  dies  pending  the  foreclosure  and  after 
having  been  made  a  defendant,  the  action  must  be  re- 
vived against  his  successor  in  office,  or  the  right  to  re- 
deem will  survive  to  the  successor.^ 

§  73.  General  guardian  of  infant,  and  committee  of 
lunatic,  idiot  or  habitual  drunkard,  trustees  and 
beneficiaries,  holding  subsequent  mortgage  or 
lien,  necessary. 

If  a  subsequent  mortgage  is  drawn  in  the  name 
of  the  general  guardian  or  committee  of  an  incompetent 
person,  the  guardian  or  committee  will,  unquestion- 
ably, be  a  necessary  party  defendant  in  an  action  to 
foreclose  a  prior  mortgage,  and  the  beneficiary  will 
also  be  a  very  proper,  if  not  a  necessary,  party,-  If, 
however,  the  subsequent  lien  is  executed  or  recovered 
in  the  name  of  the  beneficiary,  then  the  infant,  lunatic, 
idiot  or  habitual  drunkard  will  be  a  necessary  party 
in  his  own  name,  without  his  guardian  or  committee 
appearing  as  a  party  to  the  action.     The  process  of  the 

proposition  presented  in  §  37,  ante,  the  reasoning  by  analogy 
becomes  even  stronger. 

1  Avery  v.  Rverson,  84  Mich.  362  (1876). 

2  In  Willink  v.  Morris  Canal  Banking  Co.,  3  Green  Ch.  (N.  J.) 
377  (1843),  the  trustees  and  cestiiis  que  trust  were  both  held  neces- 
sary defendants;  but  in  Iowa  County  v.  Mineral  Point  R.  R.,  24 
Wis.  93  (1869),  it  was  held  sufficient  to  make  the  trustee  repre- 
senting the  bondholders  a  defendant,  and  that  the  bondholders 
would  be  bound  by  the  decree,  they  being  too  numerous  to  be 
brought  into  the  action.  See  Shinn  v.  Shinn,  91  111.  477  (1880) ;  also 
the  English  cases,  Whetherelly  v.  Collins,  3  Madd.  255  (1818), 
and  Osbourn  v.  Fallows,  1  Russ.  &  M.  741  (1830),  stating  cir- 
cumstances under  which  the  beneficiaries  are  not  necessary 
parties. 


PURCHASERS  AT  TAX  SALES,  PROPER  PARTIES.    167 

court,  however,  is  generally  required  to  be  served  upon 
the  guardian  or  committee  as  well  as  upon  the  incom- 
petent person.^ 

§  74.  Purchasers  at  tax  sales,  boards  of  supervisors,  state 
comptrollers  and  municipal  corporations,  parties. 

It  is  a  universal  principle  of  law  that  unpaid  taxes 
are  a  lien  upon  the  real  estate  against  which  they  are 
assessed  prior  to  mortgages,  judgments,  and  all  other 
incumbrances.  When  real  estate  is*  sold  for  the  satis- 
faction of  unpaid  taxes,  the  purchaser  likewise  acquires 
a  title  that  is  good  against  all  pre-existing  incumbrances 
to  the  extent  of  his , purchase  price  and  against  the 
world,  unless  divested  by  an  incumbrancer  redeeming. 
Purchasers  at  tax  sales,  and  states,  counties  and  cities, 
for  whose  benefit  any  unpaid  tax  was  levied,  are  not 
necessary  parties  to  the  foreclosure  of  a  mortgage  upon 
the  premises  taxed ;  but  they  are  very  proper  parties 
as  prior  incumbrancers  for  the  purpose  of  determining 
the  exact  amount  of  their  claims,  and  of  having  them 
extinguished  as  liens  upon  the  property,  by  a  provision 
in  the  judgment  for  their  payment  out  of  the  proceeds 
of  the  sale.'  A  purchaser  at  a  tax  sale  will  not  be  affected 
by  the  subsequent  foreclosure  of  a  mortgage  to  which 
he  is  not  made  a  party."'  The  purchaser's  title  is 
absolute  and  prior  to  the  mortgage,  subject  only  to  be 
redeemed  by  the  mortgagee.  Under  the  rulings  of  the 
courts  it  is  clearly  the  best  practice  to  make  purchasers 
at  tax  sales,  the  owners  of  tax  certificates,  and  all  parties, 

1  New  York  Code,  §  426. 

2  Roosevelt  Hospital  v.  Dowley,  57  How.  (N.  Y.)  489  (1878), 
pel'  Van  VoRST,  J.     fSee  Part  IV,  post. 

■'  Becker  v.  Howard,  66  N.  Y.  5,  8  (1876). 


168  PARTIES    TO    MORTGAGE    FORECLOSURES. 

domestic  corporations  and  others,  having  any  interest 
in  unpaid  taxes,  parties  defendant  to  a  foreclosure,  that 
their  claims  may  be  ascertained  and  paid.^ 

Provision  is  made  in  the  New  York  Code  and  in  the 
statutes  of  some  other  states,  requiring  the  referee  to 
sell,  or  the  master  in  chancery,  to  pay  all  outstanding 
taxes,  assessments,  water  rates,  etc.,  from  the  proceeds 
of  the  sale.-  Where  such  provision  can  be  made  in  the 
decree  of  sale,  it  is  not  so  desirable  to  make  parties 
holding  taxes  defendants  to  the  foreclosure. 

1  See  the  cases,  s^upra  ;  Becker  v.  Howard,  4  Hun  (N.  Y.),  359 
(1875),  per  E.  Darwin  Smith,  J.  ;  Ayres  v,  Adair  County,  61 
Iowa,  728  (1883),  per  Adams,  J.,  discussing  at  length  the  rights 
of  a  purchaser  at  a  tax  sale  in  relation  to  a  pre-existing  mort- 
gage. See  Crum  v.  Cotting,  22  Iowa,  411  (1867).  See  12  S.  C, 
488. 

2  New  York  Code,  §  1676. 


CHAPTER  III. 

PARTIES  HOLDING  PART  OR  EQUITABLE  INTERESTS  IN  THE  MORT- 
GAGE UNDER  FORECLOSURE,  OR  IN  LIENS  CONTEMPORARY 
THEREWITH,  NOT  JOINING  AS  PLAINTIFFS,  NECESSARY 
DEFENDANTS. 

§  75.     Introductory. 

76.  Assignor  having  made  an  absolute  assignment  of  the 

mortgage,  or  no  longer  holding  an  interest  in  it,  not 
necessary. 

77.  Assignee  of  a  mortgage  absolutely  assigned,  never  a 

necessary  defendant. 

78.  Assignor  of   a  mortgage  assigned  conditionally  or  as 

collateral  security,  a  necessary  party. 

79.  Assignee  of  a  mortgage  assigned  as  collateral  security, 

a  necessary  defendant,  when  the  foreclosure  is  com- 
menced by  the  assignor  or  mortgagee. 

80.  Joint  or  several  mortgagees ;  action  commenced  by  one, 

the  others  necessary  defendants. 

81.  Contemporary  and  equal  mortgagees  ;  foreclosure  com- 

menced by  one,  others  necessary  defendants. 

82.  Owrnership  of  mortgage  doubtful,  or  in  dispute ;  action 

commenced  by  one  claimant,  other  claimants  advis- 
able defendants. 
88.     Trustees   and   beneficiaries   sometimes   necessary   de- 
fendants. 

§  75.  Introductory. 

In  the  two  preceding  chapters,  attention  has  been 
given  to  those  parties  who  were  necessary  defendants 
in  an  action  to  foreclose  a  mortgage,  in  order  to  extin- 
guish the  entire  equity  of  redemption  and  all  the  hens 
that  had  accrued  upon  it   since   the   execution  of  the 


170  PARTIES    TO    MORTGAGE    FORECLOSURES. 

mortgage.  It  .sometimes  occurs  that  a  mortgage  is  held 
by  joint  owners,  or  that  there  are  liens  contemporary 
with  it,  or  that  it  is  assigned  collaterally  or  conditionally, 
wherebj''  equitable  questions  are  raised  as  to  its  true 
ownership.  Part  owners  and  others  having  equitable 
interests  in  the  mortgage  under  foreclosure  may  refuse 
to  join  as  co-plaintiffs.  In  such  cases  it  is  always  neces- 
sary to  make  them  defendants,  that  their  interests  may 
be  extinguished.  This  rule  is  based  upon  the  general 
principle  which  was  early'  considered  in  this  work,  that 
all  parties  interested  in  the  mortgage  or  in  the  mortgaged 
premises  are  necessary  parties,  plaintiff  or  defendant,  in 
an  action  to  foreclose.  It  is  also  a  well-recognized  rule, 
especially  in  equitable  actions,  that  a  person  interested  in 
the  subject-matter  of  an  action,  who  refuses  to  become 
or  who  is  omitted  as  a  co-plaintiff,  may  be  made  a 
defendant.'- 

It  is  to  be  observed  that  the  parties  defendant  dis- 
cussed in  this  chapter  could  equally  well  be  parties 
plaintiff,  with  one  or  two  exceptions  ;  and  that,  being 
omitted  or  refusing  to  join  as  parties  co-plaintiff,  they 
become  absolutely  necessar}^  parties  defendant  in  an 
action  to  foreclose,  in  order  to  produce  at  the  sale  a  per- 
fect title  and  to  accomplish  the  purposes  for  which  a 
party  is  necessary,  as  repeatedly  stated  in  this  part  of 
the  work.  Chancellor  Walworth,  in  considering  the 
necessity  of  making  a  party  holding  an  equitable  interest 
in  the  mortgage  a  party  to  the  action  in  order  to  produce 
a  perfect  decree  for  the  purchaser  at  the  sale,  has  held, 
"Where  the  mortgage  is  assigned  as  a  mere  security  for 

^  See  §  3,  ante. 

2  New  York  Code,  §  449. 


ALL  PERSONS  INTERESTED  IN  MORTGAGE,  NECESSARY.       171 

the  payment  of  a  debt,  or  where  but  a  part  of  the 
mortgage  debt  is  assigned  to  the  plaintiff,  the  as- 
signor is  a  necessary  party  to  a  bill  filed  to  fore- 
close the  mortgage,  so  that  a  perfect  decree  may 
be  made  which  will  protect  the  mortgagor  and  the 
purchaser  .  of  the  mortgaged  premises  under  the 
decree  to  be  made  in  the  suit  from  any  future  claims 
which  the  assignor  may  make,  notwithstanding  his 
assignment."^  A  conveyance  upon  a  foreclosure  sale,  to 
produce  this  result,  must  convey  the  entire  interest  of 
the  mortgagor  and  the  mortgagee,  and  be  an  entire  bar 
against  each  of  them  and  against  all  persons  claiming 
under  them.  The  New  York  Code  of  Civil  Procedure 
provides  "  that  a  conveyance  upon  the  sale,  made  pur- 
suant to  a  final  judgment  in  an  action  to  foreclose  a 
mortgage  upon  real  property,  vests  in  the  purchaser  the 
same  estate,  only,  that  would  have  vested  in  the  mort- 
gagee, if  the  equity  of  redemption  had  been  foreclosed. 
Such  a  conveyance  is  as  valid,  as  if  it  was  executed  by 
the  mortgagor  and  the  mortgagee,  and  is  an  entire  bar 
against  each  of  them,  and  against  each  party  to  the  action 
who  was  duly  summoned,  and  every  person  claiming 
from,  through  or  under  a  party,  by  title  accruing  after 
the  filing  of  the  notice  of  the  pendency  of  the  action,  as 
prescribed  in  the  last  section."^  It  is  apparent  then 
that  if  any  person,  who  holds  an  interest  in  the  mort- 
gage under  foreclosure  as  part  owner  or  otherwise,  is 
omitted  as  a  party  to  the  action,  the  decree  will  not  be 

1  Christie  v.  Herrick,  1  Barb.  Ch.  (N.  Y.)  259  (1845) ;  Johnson 
V.  Hart,  3  Johns.  Cas.  (N.  Y.)  822  (1802) ;  Hobart  v.  Abbot,  2  P. 
Wms.  (Eng.)  643  (1731)  ;  New  York  Code,  §  1632. 

2  New  York  Code,  i?  1632. 


172  PARTIES    TO    MORTGAGE    FORECLOSURES. 

binding  upon  him  and  his  interest  will  not  be  cut  off, 
his  relation  to  the  subject-matter  of  the  action  continues 
as  though  the  action  had  never  been  commenced. 

§  76.  Assignor  having  made  an  absolute  assignment  of  the 
mortgage,  or  no  longer  holding  an  interest  in  it, 
not  necessary. 

When  the  owner  of  a  bond  and  mortgage  makes  an 
absolute  and  unconditional  transfer  of  the  same  by 
assignment  or  otherwise,  he  ceases  to  have  any  interest 
in  it,  and  is,  consequently,  no  longer  a  necessary  party 
to  an  action  to  foreclose  the  mortgage  ;^  neither  are 
his  heirs,  executors  or  administrators  necessary  parties.^ 
An  administrator  who  assigned  a  mortgage  to  an 
heir  as  part  of  his  distributive  share  of  the  decedent's 
estate,  is  not  a  necessary  party  to  a  foreclosure  brought 

1  Ward  V.  Vail  Bokkeleii,  2  Paige  (N.  Y.),  295  (1830) ;  Chris- 
tie V.  Herrick,  1  Barb.  Ch.  (N.  Y.)  254  (1845);  Whitney  v.  Mc- 
Kinney,  7  Johns.  Ch.  (N.  Y.)  147  (1828) ;  Western  Reserve  Bank 
V.  Potter,  Clarke  Ch.  (N.  Y.)  437  (1841) ;  Andrews  v  Gillespie, 
47  N.  Y.  487  (1872);  Clark  v.  Mackin,  95  id.  346  (1884);  Bar- 
raque  v.  Manuel,  7  Ark.  516  1847) ;  Walker  v.  Bank  of  Mobile, 
6  Ala.  N.  rt.  452  (1844) ;  Prout  v.  Hoge,  57  id.  28  (1876) ;  Garrett 
V.  Puckett,  15  Ind.  485  (1860) ;  Gower  v.  Howe,  20  id.  396  (1863) ; 
Markel  v.  Evans,  47  id.  326  (1874).  But  held  necessary  in  Strong 
V.  Downing,  34  id.  300  (1870).  In  point,  Wilson  v.  Spring,  64  111. 
14  (1872),  where  the  assignor  assigned  one  of  a  number  of  notes 
secured  by  a  mortgage ;  Williams  v.  Smith,  49  Me.  564  (1861) ; 
Miller  v.  Henderson,  2  Stockt.  Ch.  (N.  J.)  320  (1855).  Aliter,  if 
the  assignment  is  not  absolute,  Larimer  v.  Clemer,  31  Ohio  St. 
499  (1877) ;  Omohundro  v.  Henson,  26  Gratt.  (Va.)  511  (1875) ; 
Scott  V.  Ludington,  14  W.  Va.  387  (1878).  See  Wright  v.  Sperry, 
21  Wis.  381  (1867),  and  the  note  to  the  case  in  §  8,  ante  ;  Fisher, 
§  347,  and  the  English  authorities  cited. 

-  But  in  North  Carolina  the  heirs  of  the  mortgagee  are  held 
necessary  parties  to  a  bill  of  foreclosure.  Etheridge  v.  Vernoy, 
71  N.  C.  184,  186  (1874) ;  S.  C,  70  N.  C.  713  ;  Kerchner  v. 
Fairlev,  80  id.  25  (1879).  See  also  Pullen  v.  Heron  Mining  Co., 
71  id.  567  (1874). 


ASSIGNOR    OF    MORTGAGE    NOT    NECESSARY.  173 

by  the  heir.'  Chancellor  Kent  held,  in  1823,  that 
"  where  the  assignment  is  absolute,  and  the  mortgagee 
parts  with  all  his  interest  in  the  mortgage,  and  there  is 
nothing  special  or  peculiar  in  the  case,  the  assignee  is 
under  no  necessity  to  make  the  mortgagee  a  party  to  a 
bill  to  foreclose.  The  general  principle  is,  that  a  person 
who  has  no  interest  in  the  suit  and  who  is  a  mere  wit- 
ness, against  whom  there  could  be  no  relief,  ought  not  to 
be  a  party."-  Another  learned  jurist,  in  referring  to  the 
history  and  the  reasons  for  this  principle,  determined 
that  it  is  "  well  settled  that  where  there  has  been  an 
absolute  assignment  of  all  the  interest  of  the  mortgagee 
in  the  debt  secured  by  the  mortgage,  he  is  not  a  neces- 
sary party  to  a  bill  to  redeem,  or  to  a  bill  of  foreclosure. 
The  reason  why  it  was  formerly  considered  necessary 
to  make  the  assignor  of  a  chose  in  action  a  party  to  a 
bill  in  equity  brought  by  the  assignee,  I  apprehend  must 
have  been,  that  courts  of  law  did  not  sanction  and  pro- 
tect such  assignments,  considering  them  a  species  of 
maintenance  ;  and  the  assignor  having  the  legal  title 
or  interest  in  the  thing  assigned,  might  sustain  an  action 
at  law  thereon,  notwithstanding  a  decree  in  equity  to 
which  he  was  not  a  party.  This  reason  has  long  since 
ceased,  and  the  above  settled  rule  is  jiow  in  force. "^ 
If  the  assignor  has  guaranteed  the  payment  or  coUec- 

1  Westerfield  v.  Spencer,  61  Ind.  339  (1878). 

2  Whitney  v.  McKinney,  7  Johns.  Cli.  (N.  Y.)  147  (1823) ; 
Fenton  v.  Hughes,  7  Ves.  (Eng.)  287  (1802).  See  also  McGuffey 
V.  Finley,  20  Ohio  Rep.  474  (1851),  and  the  note  on  the  case  in  §  8, 
ante;  Grant  v.  Ludlow,  8  Ohio  St.  2  (1857). 

3  Ward  V.  Van  Bokkelen,  2  Paige  (N.  Y.),  295  (1830),  per 
Chancellor  Walworth.  See  also  Chambers  v.  Goldwin,  9  Ves. 
(En^.)  269  (1804) ;  Newman  v.  Chapman,  2  Rand.  Rep.  (Va.)  93 
(1823) ;  Clark  v.  Mackin,  95  N.  Y.  346  (1884). 


174  PARTIES    TO    MORTGAGE    FORECLOSURES. 

tion  of  the  mortgage  debt,  he  is  a  necessary  party 
defendant  if  a  judgment  for  deficiency  is  sought  against 
him.'  If  usury,  fraud  or  other  defenses  or  equities 
existed  against  the  mortgage  in  its  inception  or  while 
the  mortgagee  held  it,  he  will  be  as  assignor  a  very  proper, 
if  not  a  necessary,  party  to  the  foreclosure  conducted 
by  his  assignee  f  so  also  if  the  assignment  is  imperfect 
in  form,'^  or  is  by  parol ,^  the  assignor  will  be  held  a  neces- 
sary party.  In  an  action  to  foreclose,  brought  by  the 
assignee  of  the  mortgage  debt  without  the  mortgage,  the 
assignor  has  been  held  a  necessary  defendant.'^  It  is  now 
well  settled  that  one  who  transfers  a  chose  in  action 
warrants  impliedly,  at  least,  that  there  is  no  legal  defense 
to  its  collection  arising  out  of  his  own  connection  with 
its  origin.*'  It  has  been  held  that  the  assignor,  under 
such  circumstances,  is  not  a  necessary  party  to  the 
action,  for  the  reason  that  upon  the  coming  in  of  the 
answer  setting  up  usury,  fraud,  or  other  defenses,  the 
assignee  as  plaintiff  may  give  notice  of  such  defense  to 
the  assignor  and  offer  to  him  the  future  management  of 
the  suit,  which  would  make  the  judgment  binding  upon 

1  8ee  §  109,  past,  on  the  liability  of  an  assignor  for  a  judg- 
ment of  deficiency. 

-  Ward  V.  Sharp,  15  Vt.  115  (1843).  See  §8,  ante,-  last 
paragraph. 

'■^  Holdridge  v.  Sweet,  23  Ind.  118  (1864). 

^  Denby  v.  Mell.ffvew,  58  Ala.  147  (1877). 

5  In  Bibb  V.  Havvley,  59  Ala.  403  (1878),  the  assignor  was 
held  a  necessary  party  in  case  of  an  unindorsed  note  where  the 
assignment  was  by  a  separate  written  instrument.  See  Strong 
V.  Downing,  34  Ind.  300  (1870).     See  also  g§  13,  18  and  19,  ante. 

^  Delaware  Bank  v.  Jarvis,  20  N.  Y.  226  (1859) ;  Littauer  v. 
Goldman,  72  id.  506  (1878);  Andrews  v.  Gillespie,  47  id,  487 
(1872).  So  held  of  a  bond  and  mortgage  which  were  usurious  and 
void,  and  assiirued  bv  the  mortgagee ;  Ross  v.  Terry,  63  N.  Y. 
613  (1875). 


REMEDY    AGAINST    ASSIGNOR    WARRANTING    MORTGAGE.    175 

him,  and  place  the  plaintiff  in  the  best  possible  position 
for  maintaining-  an  action  against  the  assignor  for  a 
breach  of  warranty.  In  such  a  case  it  has  been  held  that, 
"if  the  assignor  was  a  necessary  party  to  a  complete 
determination  of  the  controversy,  she  should  have  been  so 
made  under  the  provisions  of  §  452,  instead  of  depriv- 
ing the  defendant  (mortgagee)  of  a  right  to  which  he  was 
clearly  entitled,  because  of  her  absence  as  such  party. 
It  was  the  protection  of  the  interest  of  the  plaintiff 
(assignee),  and  not  that  of  the  defendant,  that  made  her 
a  necessary  party  if  so  at  all.  By  the  sale  and  assignment 
of  the  mortgage  to  the  plaintiff's  testator,  the  assignor 
impliedly  warranted  that  there  was  no  legal  defense  to 
its  collection  arising  out  of  its  origin.  *  *  *  But 
it  was  not  necessary  to  make  the  assignor  a  party,  to 
accomplish  this  object.  It  is  well  settled  that  a  pur- 
chaser of  property,  with  a  warranty  of  title,  upon  being 
sued  for  the  recovery  thereof  by  one  claiming  a  paramount 
title  thereto,  may  give  notice  to  his  vendor  of  the  ac- 
tion, and  offer  to  him  the  conduct  of  the  defense  ;  and 
that  upon  his  so  doing,  the  vendor  is  bound  by  the 
judgment  in  respect  to  the  title,  whether  or  not  the 
defense  is  undertaken  by  him."^ 

§  77.   Assignee  of  a  mortgage  absolutely  assigned,  never 
a  necessary  defendant. 

As  the  assignee  of  a  mortgage  becomes  its  absolute 
owner,  he  occupies  the  position  of  the  original  mort- 
gagee in  all  respects,  and  of  course  can  sustain  no 
other  relation  to  an  action  to  foreclose  than  that  of  plain- 

1  Andrews  v.  Gillespie,  47  N.  Y.  492  (1872),  per  Grover,  J. 


176  PARTIES    TO    MORTGAGE    FORECLOSURES. 

tifF.^  He  is  always,  however,  a  necessary  party  to  the 
action  in  some  relation,  as  a  perfect  title  could  not  be 
offered  at  the  sale,  unless  his  interest  by  lien  were  ex- 
tinguished. In  an  action  by  the  mortgagor  to  redeem, 
he  is,  vice  versa,  a  necessary  defendant,  in  place  of  his 
assignor,  the  mortgagee.- 

§  78.  Assignor  of  a  mortgage  assigned   conditionally,  or 
as  collateral  security,  a  necessary  party. 

A  mortgagee  who  assigns  his  bond  and  mortgage 
conditionally,  as  a  collateral  securit}^  or  otherwise, 
retaining  to  himself  at  the  same  time  ah  equitable 
interest  of  any  kind,  is  a  necessary  party  to  a  foreclosure 
of  the  mortgage  instituted  by  the  assignee ;  if  he  is  not 
joined  as  a  co-plaintiff  he  will  be  a  necessary  defendant.^ 

^  Lennon  v.  Porter,  2  Gray  (Mass.),  473  (1854),  holding  also 
that  a  mesne  assignee  is  not  a  necessary  defendant ;  Barton  v. 
Baxter,  7  Blackf.  (Ind.)  297  (1844).  See  g§  7  and  8,  ante,  and 
notes. 

2  Whitney  v.  McKinney,  7  Johns.  Ch.  (N.  Y.)  147  (1823),  per 
Chancellor  Kent. 

'  Slee  V.  Manhattan  Co.,  1  Paige  (N.  Y.),  48  (1828) ;  Kittle  v. 
Van  Dyck,  1  Sandf.  Ch.  (N.  Y.)  76  (1843) ;  West.  Res.  Bank  v. 
Potter,  Clarke  Ch.  (N.  Y.)  432  (1841);  Johnson  v.  Hart,  3  Johns. 
Cas.  (N.  Y.)  322  (1802) ;  Bard  v.  Poole,  12  N.  Y.  495  (1855) ; 
Bloomer  v.  Sturges,  58  id.  175  (1874) ;  Union  College  v.  Wheeler 
61  id.  88  (1874) ;  Dalton  v.  Smith,  86  id.  176  (1881).  See 
Hughes  V.  Johnson,  38  Ark.  285  (1883) ;  Brown  v.  Johnson, 
53  Me.  246  (1865);  Cutts  v.  Y'ork  Manufacturing  Co.,  14  id. 
326  (1837);  lb.,  18  id.  190  (1841);  St.  John  v.  Freeman,  1 
Carter  (Ind.),  84  (1848) ;  Wright  v.  Sperry,  21  Wis.  331  (1867) ; 
Fithian  v.  Corwin,  17  Ohio  St.  119  (1866);  Woodruff  v.  Depue,  1 
McCarter  (14  N.  J.  Ch.)  168  (1861),  authorities  stated  in  the  briefs 
of  the  counsel;  Miller  v.  Henderson,  2  Stockt.  (N.J.)  320  (1855); 
Ackerson  v.  Lodi  Branch  R.  R.,  28  N.  J.  Eq.  542  (1877) ;  Stevens 
V.  Reeves,  33  N.  J.  Eq.  427  (1881) ;  Chew  v.  Brumagin,  21  N.  J. 
Eq.  520,  529  (1870),  exhaustively  collating  and  reviewing  the 
New  York  cases;  reported  also  in  19  N.  J.  Eq.  130  (1868)  ;  on 
appeal  to  the  Supreme  Court  of  the  United  States,  the   assignor 


ASSIGNOR    OF    MORTGAGE    COLLATERALLY,  NECESSARY.    177 

The  logical  reason  for  this  rule  is,  that  a  complete  decree 
could  not  otherwise  be  made  which  would  protect  the 
mortgagor  and  the  purchaser  of  the  mortgaged  premises 
from  any  claims  which  the  assignor  might  subsequently 
make,  as  the  court  would  acquire  no  jurisdiction  of  him,  and 
an  interest  in  the  premises  would  remain  unextinguished. 
Thus,  in  an  action  where  it  appeared  that  a  mortgagee 
had  assigned  his  mortgage  as  a  collateral  security, 
and  subsequently  made  a  general  assignment  for  the 
benefit  of  creditors,  it  was  held  that  the  assignees 
or  trustees  for  the  creditors  succeeded  to  the  rights 
of  the  mortgagee,  and  were  necessary  defendants 
in  an  action  to  foreclose  brought  by  the  pledgee  of 
the  mortgage.^  Kent  has  stated  as  cogent  reasons 
why  the  assignor  should  be  made  a  defendant  where 
the  assignment  is  made  as  a  collateral  security,  that 
he  should  have  an  ppportunity  to  redeem  his  bond 
and  mortgage  by  paying  the  debt,  and  also  to  show,  if 
he  could,  that  he  had  in  fact  paid  his  debt  and  so  was 
entitled  to  a  re-assignment  of  the  mortgage;  and  further, 
that  otherwise  the  mortgaged  premises  might  be  sold 
without  his  knowledge.'^     In  an  early  case,  it  was  held 

was  held  not  a  necessary  party ;  the  assignee  was  held  to  be  a 
trustee  for  him  to  the  extent  of  the  surplus  over  his  own  debt  for 
which  he  held  the  mortgage  as  a  collateral  security  ;  18  Wal.  (U. 
S.)  497  (1871).  In  8almon  v.  Allen,  11  Hun  (N.  Y.),  29  (1877),  a 
complicated  case,  the  first  pledgee  had  re-assigned  the  bond  and 
mortgage  as  a  collateral  security  for  his  own  obligations  ;  on 
foreclosure  both  of  the  assignees  and  the  original  mortgagee  were 
held  necessary  parties.  See  also  Graydon  v.  Church,  4  Mich.  646 
(18.57),  where  the  assignor  was  not  made  a  party  and  he  subse- 
quently became  insolvent ;  Fisher,  §  348 ;  Norrish  v.  Marshall, 
5  Madd.  (Eiig.)  475  (1821);  Hobart  v.  Abbot,  2  P.  Wms.  (Eng.) 
642  (1781).     See  also  §i^  14  and  15,  ante,  and  the  notes. 

1  Bard  v.  Poole,  12  N.  Y.  495  (1855),  a  case  often  cited. 

-  Johnson  v.  Hart,  8  Johns.  Cas.  (N.  Y.)  322  (1802) ;  Bard  v. 
12 


178  PARTIES    TO    MORTGAGE    FORECLOSURES. 

that  the  "  assignor  was,  therefore,  the  principal  party 
interested  in  the  mortgage  at  the  time  the  bill  was  filed  ; 
and  although  the  legal  title  to  the  bond  and  mortgage 
was  in  the  plaintiff  (assignee)  solely,  the  equitable 
interest  was  mainly  in  the  assignor.  There  is  no  doubt 
but  that  she  was  a  necessary  party  to  the  suit."^  This 
rule  holds  good,  even  though  the  assignment  of  the 
mortgage  is  absolute  on  its  face  and  expresses  a  full 
consideration,  when  the  actual  fact  is,  that  only  a  portion 
of  the  consideration  was  paid,  and  that  such  payment 
was  only  a  loan."  Where  it  appeared  in  a  suit  brought 
by  the  assignee  of  a  mortgage,  assigned  as  collateral 
security,  to  foreclose  the  same,  that  it  was  the  intention 
of  the  assignor  to  give  such  assignee  the  right  to  receive 
the  moneys  due  upon  the  mortgage  and  to  foreclose  the 
same  in  his  own  name,  it  was  held  that  the  assignor 
was  not  a  necessary  party,  and  that  the  decree  of  sale 
was  perfect  without  him.^ 

§  79.  Assignee  of  a  mortgage  assigned  as  collateral  security, 
a  necessary  defendant  -when  the  foreclosure  is 
commenced  by  the  assignor  or  mortgagee. 

A  mortgagee  who  has  assigned  a  mortgage  as  collat- 
eral security  for  a  less  amount  than  the  mortgage  may, 
as  assignor,  file  a  bill  of  foreclosure  in'  his  own  name, 
especially  if  the  purchaser  or  assignee  holding  the 
mortgage  as  collateral  security  refuses  to  foreclose.^     As 

Poole,  12  N.  Y.  508  (1855).  >See  Compton  v.  Jones,  65  Iiid.  117 
(1880) ;  where  the  debt  had  been  paid  and  the  assignor  was 
erroneously  omitted  as  a  party. 

1  Kittle  V.  Van  Dyck,  1  Handf.  Ch.  (N.  Y.)  78  (1843). 

-  Kittle  V.  Van  DjH-k,  supra. 

3  Christie  v.  Herrick,  1  Barb.  Ch.  (N.  V.)  254  (1845). 

'^  yee  §§  14  and  15,  ante,  and  notes. 


ASSIGNEE    OF    MORTGAGE    COLLATERALLY,  NECESSARY.    179 

has  been  seen,  the  purchaser  might  have  commenced  the 
action  and  made  the  mortgagee  a  defendant,  if  he  re- 
fused to  become  a  co-plaintiff;^  and  in  that  case  the 
assignee  would  have  become  a  trustee  of  the  surplus.'^ 
In  case  the  mortgagee,  as  assignor,  commences  an  action 
as  sole  plaintiff,  the  assignee,  if  he  refuses  to  become  a 
co-plaintiff,  will  be  a  necessary  party  defendant.^  This 
rule  is  based  upon  the  same  principle  stated  in  the  pre- 
ceding section,  that  the  entire  interest  of  the  mortgagee 
must  be  brought  under  the  jurisdiction  of  the  court.  If 
that  part  of  the  mortgagee's  interest  which  is  assigned 
as  a  collateral  security  is  not  represented  in  the  fore- 
closure by  the  assignee,  the  decree  of  sale  will,  of  course, 
be  defective,  and  the  purchaser  will  not  acquire  the  whole 
interest  of  the  mortgagee  and  the  mortgagor.* 

If  the  assignee  refuses  to  become  a  co-plaintiff,  and  is 
made  a  defendant,  the  reason  why  he  is  made  a  defend- 
ant must  be  alleged  in  the  complaint,  or  it  will  be  de- 
murrable f  if  the  objection  is  not  taken  by  demurrer, 
it  will  be  considered  waived.  If  the  defect  does  not 
appear  upon  the  face  of  the  complaint,  it  may  be  ob- 
jected   to   by  any  party    interested  in    the   action,   by 


1  Hoyt  V.  Martense,  16  N,  Y.  231  (1857) ;  Brown  v.  Johnson, 
53  Me.  246  (1865).     See  §§  14  and  15,  ante. 

2  Norton  v.  Warner,  3  Edw.  Ch.  (N.  Y.)  106  (1837). 

^  Norton  v.  Warner,  supra ;  tSimson  v.  tSatterlee,  6  Hun 
(N.  Y),  305  (1875);  aff'd  64  N.  Y.  6;)7  (1876);  Mc- 
Millan V.  Gordon,  4  Ala.  716  (1843).  do  a  person  who 
has  attached  a  mortgage  debt  is  held  a  necessary  party 
defendant ;  Pine  v.  Shannon,  30  N.  J.  Eq.  404  (1879).  To 
the  contrary,  unless  the  sheriff  has  obtained  actual  possession  of 
the  papers,  see  Anthony  v.  Wood,  19  Week.  Dig.  (N.  Y.)  177 
(1884). 

4  New  York  Code,  §  1632. 

5  Carpenter  v.  O'Dougherty,  2  T.  &  C.  (N.  Y.)  427  (1873). 


180  PARTIES    TO    MORTGAGE    FORECLOSURES. 

answer.  The  same  is  also  true  where  the  action  to 
foreclose  is  commenced  by  the  assignee,  as  described  in 
the  preceding  section,  and  the  assignor  or  mortgagee  is 
omitted  as  a  party  .^ 

§  80.  Joint  or  several  mortgagees  ;  action  commenced  by 
one,  the  others  necessary  defendants. 

Where  a  joint  or  several  mortgage  is  foreclosed  by  one 
of  the  mortgagees,  and  the  remaining  mortgagees  refuse 
to  unite  as  co-plaintiffs  in  the  action,  they  are  uniformly 
held  necessary  defendants,-  for  the  reason  that  their 
omission  fails  to  give  the  court 'complete  jurisdiction 
over  the  mortgage  debt.  Thus  a  mortgage  had  been 
executed  to  several  creditors  to  secure  their  respect- 
ive claims  ;  on  foreclosure  by  some  as  plaintiffs  who 
omitted  others  as  parties  to  the  action,  the  court  held 
that  the  omitted  parties  might  maintain  a  separate  action 
for  foreclosure,  but  that  all  should  have  been  originally 
brought  before  the  court.'  In  an  action  by  A.  to  fore- 
close a  mortgage  executed  to  A.  and  B.,  to  secure  a  note 
given  to  A.  alone,  B.  was  held  a  necessary  party;*  and 
where  a  mortgage  is  given  by  one  of  two  joint  obligors 
on  a  note,  it  is  erroneous  to  file  the  bill  against  the 
mortgagor  alone  ;  the  other  joint  maker  of  the  note  is 

'  See  §  15,  ante. 

'■^  'See  §i$  9,  10,  11  and  12,  ante,  and  notes.  8ee  also  Deiiison  v. 
League,  \q  Tex.  399,409  (1856);  Porter  v.  Clements,  3  Ark. 
364,  380  (1842) ;  Fisher,  §  349  ;  Vickers  v.  Cowell,  1  Beav.  (Eug.) 
529  (1839).  In  Lovell  v.  Farrington,  50  Me.  239  (1863),  one  of 
two  mortgagors  refusing  to  join  as  a  co-plain'tiif  in  an  action  to 
redeem  was  held  a  necessary  defendant. 

3  Howe  V.  Dibble,  45  Ind.  120  (1873).  See  Tyler  v.  Yreka 
Water  Co.,  14  Cal.  212  (1859),  on  the  necessity  of  making  them 
parties;  Railroad  Co.  v.  Orr,  18  Wall.  (U.S.)  471  (1873). 

*  Chrisman  v.  Chenoweth,  81  Ind   401  (1882). 


WHEN  A  JOINT  OR  SEVERAL  MORTGAGEE  IS  NECESSARY.   181 

a  necessary  defendant.^  The  holder  of  one  or  more  of 
a  number  of  notes  secured  by  a  mortgage  is  generally  a 
necessary  defendant  in  an  action  for  foreclosure  brought 
by  the  holder  of  any  other  note,  providing  he  does  not 
join  as  a  co-plaintiff ;  this  is  specially  true  if  the  holder 
of  the  note  has  any  interest  in  the  mortgage.'^  If  no 
interest  in  the  mortgage  passes  with  the  transfer  of  the 
note,  the  holder  of  the  note  is  deemed  an  unnecessary 
party  in  some  states/^ 

In  the  foreclosure  of  a  joint  mortgage  by  the  survivor 
of  the  mortgagees,  the  personal  representatives  of  the 
decedent  are  not  necessary  defendants  under  the  doc- 
trine of  survivorship  in  joint  tenancy.^  The  rule  is 
otherwise  where  the  mortgage  is  held  by  parties  in  sev- 
eralty.^ Where  a  mortgage  was  executed  to  a  husband 
and  wife,  and   the  husband   died  and   his  administrator 

1  Dedrick  v.  Barber,  44  Mich.  19  (1881).  See  Fond  du  Lac 
Harrow  Co.  v.  Haskins,  51  Wis.  135  (1881). 

-  Ill  Pettiboiie  v.  Edwards,  15  Wis.  95  (1862),  an  action  was 
brought  on  the  last  of  three  notes  for  the  foreclosure  of  a  mort- 
gage, and  the  holder  of  the  second  note  was  held  a  necessary 
defendant.  See  also  Myers  v.  Wright,  33  111.  284  (1864) ;  Lietze 
V.  Claybaugh,  59  id.  136  (1871)  ;  Preston  v.  Hodii-en.  50  id.  56 
(1869) ;  Murdock  v.  Ford,  17  Ind.  52  (1861) ;  Gratton  v.  Wiggins, 
23  Cal.  16  (1863).  In  Rankin  v.  Major,  9  Iowa,  297,  300  (1859), 
two  notes  were  made  to  A.  B.  &  Co.  and  secured  by  a  mortgage; 
one  was  sold  to  J.  W.  R. ;  A.  B.  &  Co.  and  J.  W.  R.  united  as 
co-plaintiffs  to  foreclose.  The  court  held  that  there  was  a  mis- 
joinder of  plaintiffs,  and  that  one  of  them  should  have  been  made 
a  defendant.  Seemingly  contra,  see  Henslay  v.  Whiffin,  54  Iowa, 
555  (1880) ;  Thayer  v.  Campbell,  9  Mo.  Rep.  277  (1845) ;  Harris 
V.  Harlan,  14  Ind.  439  (1860).  But  see  §  13,  ante,  and  notes,  cit- 
ing the  cases  fully  and  stating  the  rule  in  different  states. 

^  Kemerer  v.  Bournes,  53  Iowa,  172  (1880) ;  Bell  v.  Shrock,  2 
B.  Mon.  (Ky.)  29  (1841) ;  Archer  v.  Jones,  4  C.  (26  Miss.)  583 
(1853);  Pugh  v.  Holt,  5  id.  (27  Miss.)  461  (1854). 

*  Lanway  v.  Wilson,  30  Md.  536  (1869).  See  §  11,  ante,  and 
notes,  for  a  full  presentation  of  this  question. 

'  See  §§  10  and  12,  ante,  and  notes. 


182  PARTIES    TO    MORTGAGE    FORECLOSURES. 

assigned  it,  without  the  wife  joining  in  the  assignment, 
she  was  held  a  necessary  defendant  in  an  action  brought 
by  the  assignee  for  foreclosure.^ 

§  81.  Contemporary  and  equal   mortgagees ;  foreclosure 
commenced  by  one,  others  necessary  defendants. 

Where  two  or  more  mortgages,  held  by  different  par- 
ties, are  contemporary  and  equal  liens  upon  premises, 
the  commencement  of  a  foreclosure  by  the  owner  of  any 
of  the  mortgages  as  sole  plaintiff  will  render  the  remain- 
ing mortgagees  necessary  defendants  in  the  action.' 
This  rule  is  based  upon  the  fact  that  courts  regard  the 
owners  of  such  mortgages  the  same  as  they  would 
the  owners  of  a  single  mortgage  given  to  secure 
in  severalty  the  respective  amounts  of  the  different  con- 
temporary mortgages. 

§  82.  O^wnership  of  mortgage  doubtful,  or  in  dispute  ; 
action  commenced  by  one  claimant,  other  claim- 
ants advisable  defendants. 

Whenever  the  ownership  of  a  mortgage  is  in  dispute, 
or  parties  other  than  those  to  the  instrument  claim  an 
interest  in  it,  it  is  the  best  practice  to  bring  ail  claimants 

1  yaviiiiis  Bank  v.  Freese,  26  N.  J.  Eq.  453  (1875).  See  §  11, 
ante. 

2  Cain  V.  Hanna,  63  Ind.  408  (1878)  ;  Cochran  v.  Goodell,  131 
Mass.  464(1881);  Decker  v.  Boice,  83  N.  Y.  215  (1880.)  See 
Eleventh  Ward  Savings  Bank  v.  Hay,  55  How.  (N.  Y.)  444 
(1878).  In  Greene  v.  Waruick,  64  N.  Y.  220  (1876),  rev^ersing 
4  Hun,  703,  it  was  also  held,  that  where  there  was  an  agreement 
that  two  mortgages  executed  at  the  same  time  to  diifeient  parties 
should  be  equal  liens,  the  fact  that  one  was  recorded  first  gave  it 
no  priority,  even  in  the  hands  of  a  hoimfide  assignee  who  bought  it 
relying  upon  the  record  and  believing  it  to  be  the  first  lien.  For 
a  full  list  of  cases  upon  the  subject  of  this  section,  see  §  20,  ante. 


OWNERSHIP    IN    DISPUTE,    ALL    CLAIMANTS    NECESSARY.    183 

within  the  jurisdiction  of  the  court,  that  all  interests 
may  be  bound  by  the  decree,  and  the  mortgage  com- 
pletely foreclosed,^  It  often  occurs  that  the  legal  title 
to  a  mortgage  is  held  by  one  person  and  the  equitable 
title  by  another.  Thus,  where  a  defendant  answers  that 
no  valid  assignment  was  made  to  the  plaintiff,  the 
plaintiff  may  amend,  making  his  assignor  a  defendant 
to  determine  the  question.'  Numerous  illustrations  of 
the  principle  of  this  section  will  be  found  in  the  first 
part  of  the  work  and  in  the  preceding  sections  of  this 
chapter. 

§  83.  Trustees   and    beneficiaries    sometimes    necessary 

defendants. 

In  the  foreclosure  of  a  trust  mortgage  by  the  trustee 
as  plaintiff,  it  may  be  stated  as  a  general  rule  that  the 
beneficiaries  or  cestuis  que  trust  are  necessary  defendants, 
unless  they  are  joined  as  co-plaintiffs  in  the  action.^ 
Likewise,  if  the  action  is  commenced  by  a  beneficiary, 
the  trustees  and  other  beneficiaries  are  necessary 
defendants,  unless  joined  as  co-plaintiffs.*  There  are 
some  exceptions  to  these  rules,  especially  in  the  case  of 
railroad  mortgages  and  where  the  beneficiaries  are  very 

1  See  Kellogg  v.  Smith,  26  N.  Y.  18  (1862) ;  .Hancock  v.  Han- 
cock, 22  id.  568(1860);  Peck  v.  Mallaras,  10  id.  509  (1853); 
Slee  V.  Manhattan,  1  Paige  (N.  Y.),  48  (1828) ;  Lawrence  v. 
Lawrence,  3  Barb.  Ch.  (N.  Y.)  71  (1848).    See  Part  IV,  post. 

2  Barrows  v.  Stryker,  47  Iowa,  477  (1877). 

3  Large  v.  Van  Doren,  1  McCarter  (N.  J.  Eq.),  208  (1862) ; 
Davis  V.  Hemingway,  29  Vt.  438  (1857) ;  Fisher,  §  375  et  seg. ; 
Barkley  v.  Lord  Reay,  2  Hare  (Eng.),  306  (1843).  Contra,  in 
Maryland,  see  Hays  v.  Dorsey,  5  Md.  Rep.  99(1853),  under  the 
act  of  1833,  chap.  181 ;  Waring  v.  Turton,  44  Md.  535  (1876). 
See  §§  28  and  29,  ante,  where  the  cases  are  cited  fully. 

^  Hays  V.  Lewis,  21  Wis.  663  (1867) ;  Hackensack  Water  Co. 
V.  De  Kay,  36  N.  J.  Eq.  549  (1883) ;  Dorsey  v.  Thompson,  37 
Md.  25  (1872).     See  §  29,  ante. 


184  PARTIES    TO    MORTGAGE    FORECLOSURES. 

numerous.^  If  the  action  is  merely  for  the  purpose  of 
reducing  the  trust  fund  to  possession,  it  has  been  held 
that  the  cestuis  que  trust  are  not  necessary  parties.'-  In  a 
New  York  case,  where  a  mortgage  was  made  to  a  person 
in  trust  for  the  payment  of  several  bonds  of  the  mort- 
gagor held  by  different  individuals,  the  bondholders 
were  held  necessary  parties  to  an  action  brought  by  the 
trustee  as  sole  plantifif.^ 

'  See  §§  28  and  29,  ante;  Swift  v.  Stebbins,  4  Stew.  &  Port. 
(Ala.)  447  (1833). 

2  Adams  v.  Bradley,  12  Mich.  346  (1864),  and  the  cases  cited. 

3  King  V.  The   Merchants'  Exchange  Co.,  5    N.  Y.  547,  556 
(1851). 


PART    III. 

PARTIES     PERSONALLY    LIABLE    FOR    THE 
MORTGAGE   DEBT. 


GENERAL    PRINCIPLES POINTS    IN    PRACTICE. 

§  84.  Introductory. 

85.  General  principles — at  common-law. 

86.  Theory  of  the  English  and  common-law  practice. 

87.  General    principles — statutory    provisions   modifying 

the  common-law  rule. 

88.  Points  in  practice — the  complaint. 

89.  Points  in  practice — the  decree  of  foreclosure. 

90.  Points  in  practice — the  judgment  for  deficiency. 

§  84.  Introductory.  ^ 

In  the  consideration  of  parties  defendant  to  an  ac- 
tion to  foreclose  a  mortgage,  attention  has  been  given 
in  the  foregoing  pages  to  those  parties  alone  who  were 
necessary  to  enable  the  plaintiff  to  exhaust  his  entire 
remedy  against  the  land  in  a  perfect  manner, —  that  is,  to 
those  parties  who  were  necessary,  in  order  to  wipe  out 
the  entire  interest  of  the  mortgagee  and  the  mortgagor 
in  the  premises  at  the  time  of  the  execution  of  the  mort- 
gage, and  to  offer  a  perfect  title  to  a  purchaser  at  the 
sale,  or  such  a  title  as  the  courts  would  compel  a  pur- 
chaser to  accept.  The  examination  of  questions  affect- 
ing such  parties  has  been  completed ;  but  now,  after 
the  plaintiff's  remedy  against  the  mortgaged   premises 


186  PARTIES    TO    MORTGAGE    FORECLOSURES. 

has  been  entirely  exhausted,  there  remains  for  investi- 
gation the  interesting  question,  whether  he  has  any 
other  remedy  for  the  collection  of  his  mortgage  debt, 
and  if  so,  what  and  against  whom.  The  statutes  and 
decisions  affecting  these  questions  are  in  their  growth  a 
splendid  historical  illustration  of  the  expansive  and 
liberal  tendencies  of  our  equity  system.  There  was  a 
time  in  the  law  of  mortgages  when  the  mortgagee  had 
no  remedy  for  the  collection  of  his  debt,  excej)t  an  ac- 
tion against  the  land ;  even  to-day,  the  general  princi- 
ple underlying  that  old  English  law  is  preserved  in 
part  by  our  courts,  in  making  the  land  the  primary 
fund  for  the  payment  of  the  debt. 

At  present,  however,  both  in  England  and  America, 
the  plaintiff  has  generally  a  personal  remedy  by  action 
at  law  against  all  persons  who  have,  in  any  way,  made 
themselves  liable  for  the  payment  of  the  mortgage 
debt;  and  most  of  the  states  have  made  provision 
for  the  enforcement  of  that  remedy  in  the  action  of  fore- 
closure, obtaining  as  a  result,  if  the  premises  are  insuf- 
ficient to  pay  the  debt,  what  is  commonly  known  as  a 
judgment  for  deficiency.  It  is  proposed  in  this  part  of 
the  work  to  consider  those  parties  who  may  be  made 
defendants  in  an  action  to  foreclose  a  mortgage,  for 
the  purpose  of  obtaining  a  judgment  for  deficiency 
against  them;  no  particular  consideration  need  be  given 
to  parties  against  whom  this  personal  remedy  may  be 
enforced  in  a  separate  action  at  law.  No  person  who 
has  merely  become  liable  for  the  mortgage  debt  and  who 
has  no  interest  in  the  mortgaged  premises  can,  in  any 
sense,  be  said  to  be  a  necessary  party  to  a  foreclosure, 
except  for  the  purpose  of  exhausting  in  the  same  action 


PERSONAL  LIABILITY  FOR  MORTGAGE GENERALLY.       187 

every  remedy  for  collecting  the  debt.  The  useof  theword 
"  necesisary,"  with  this  meaning,  is  not  common  in 
the  reported  cases  ;  the  word  "  proper"  is  more  often  used 
by  the  courts,  as  it  indicates  an  option  on  the  part  of  the 
plaintiff  to  make  such  a  person  a  defendant.  In  the 
following  pages,  then,  clearness  and  accuracy  will  be 
better  obtained,  if  parties  are  considered  as  liable  or 
not  liable  for  the  mortgage  debt,  instead  of  being  con- 
sidered as  "  necessary  "  or  "  proper  "  to  the  action ;  for 
if  it  is  once  determined  that  a  party  is  liable,  the  plaintiff 
may  make  him  a  party  or  not,  according  to  his  inten- 
tion of  pursuing  his  personal  remedy  against  him,  due 
regard  being  had  always  to  the  relation  of  principal 
and  surety  which  the  defendant  may  sustain  to  any 
other  person  who  is  liable. 

§  85.  G-eneral  principles — at  common-lav^. 

The  pursuit  of  a  remedy  against  the  land  for  the 
collection  of  a  mortgage  debt  has  always  been  equitable. 
In  early  English  law  the  land  was  the  only  source  from 
which  payment  could  be  enforced.  As  the  law  of  mort- 
gages was  developed,  and  it  became  thoroughly  established 
that  a  mortgage  was  only  a  security,  there  grew  up  the 
use  of  a  bond  or  note  as  the  instrument  of  indebtedness 
which  the  mortgage  accompanied  merely  as  a  collateral 
security  ;  a  covenant  of  payment  of  the  debt  was  some- 
times incorporated  into  the  mortgage  and  used  instead  of 
a  bond.  With  the  introduction  of  the  covenant  of  pay- 
ment and  the  use  of  a  bond  or  note,  there  grew  up  a  line  of 
cases'  in  English  and  American  law  which  sustained  an 

1  Diiiikley  v.  Van  Buren,  3  Johns.  Ch.  (N.  Y.)  330  (1818),  citing 
English  authorities  ;  Globe  Ins.  Co.  v.  Lansintc,  .5  Cow.  (N.  Y.) 
380' (1826) ;  3  Powell  on  Mortgages,  ItlOS. 


188  PARTIES    TO    MORTGAGE    FORECLOSURES. 

action  at  law  for  the  recovery  of  the  debt  independently 
of  the  mortgaged  premises  and  also  for  the  recovery  of 
any  balance  which  might  remain  unpaid  after  applying 
the  proceeds  of  a  sale  of  the  land  to  the  payment  of 
the  debt.  In  an  early  action  at  law  brought  on  a  bond  to 
recover  a  deficiency  arising  on  a  foreclosure  and  sale, 
the  defense  was  interposed  that  the  bond  and  mortgage 
had  been  extinguished  by  the  foreclosure.  The  court 
said,  "  The  question  presented  is,  whether  a  foreclosure 
and  sale  of  the  premises  mortgaged  as  a  collateral  secu- 
rity, is  an  extinguishment  of  the  debt  due  on  the  bond. 
It  most  clearly  is  not,  any  further  than  to  the  extent 
of  the  money  produced  by  the  sale  of  the  mortgaged 
premises."^ 

The  practice  at  law  and  in  equity  for  the  collection 
of  a  mortgage  debt  has  been  modified  and  assisted,  from 
time  to  time,  in  England  and  the  various  states,  by 
statutory  provisions.  Under  the  common-law  foreclos- 
ure of  a  mortgage,  the  distinguishing  characteristic  of 
the  practice  with  reference  to  persons  liable  for  the 
mortgage  debt  was,  that  they  could  not  be  made  parties 
defendant  for  the  purpose  of  obtaining  a  judgment  for 
deficiency  against  them  ;  a  judgment  for  deficiency  could 
not  be  demanded  ao;ainst  the  morto;ao;or  even  where  he 
was  the  sole  defendant  to  the  action."-     The  universal  and 


1  Globe  Ins.  Co.  v.  Lansin«T,  5  Cow.  (N.  Y.)  881  (1826),  per 
Savage,  Ch.  J.  As  early  as  1779,  Lord  Thurlow  held  in  Aylet 
V.  Hill,  2  Dick.  (Eng.)  551,  that  "  a  mortgagee  might  proceed  on 
his  bond,  notwithstanding  he  had  obtained  a  decree  of  foreclos- 
ure." See  Duiikley  v.  Van  Buren,  supra.  See  also  Southworth 
V.  Scofield,  51  N.  Y.  513  (1873),  where  an  action  was  maintained 
for  an  unpaid  balance. 

2  Dunkley  v.  Van  Buren,  supra;  Fleming  v.  Sitton,  1  Deve- 
reux  B.  Eq.  (N.  C.)  623  (1837). 


REMEDIES  ON  THE  PERSONAL   LIABILITY.  189 

only  practice  was  for  the  plaintiff  to  sue  at  law  on  the 
bond  or  other  instrument  of  indebtedness  which  made  the 
defendant  liable  for  any  deficiency  which  might  remain 
unpaid.'  An  action  to  foreclose  under  that  practice 
was  in  no  sense  in  personam,  but  rather  in  rem.'  In 
those  states  where  statutory  provisions  have  not  been 
made  for  obtaining  a  judgment  of  deficiency  in  an  action 
to  foreclose  a  mortgage,  this  same  common-law  practice 
of  a  separate  action  at  law  on  the  instrument  of  indebt- 
edness, remains  the  only  procedure  that  the  plaintiff 
has.  In  most  states  of  the  Union  a  statutory  provision 
is  now  made,  however,  for  joining  all  persons  liable  for 
the  debt  in  the  action  to  foreclose,  and  for  decreeing 
a  personal  judgment  of  deficiency  therein  against 
them ;  but  even  in  those  states  the  common-law 
practice  is  not  abolished  but  remains  in  force,  with 
the  single  condition  that  to  exercise  it,  permission 
to  sue  at  law  must  first  be  obtained  of  the  court  in 
which    the     mortgage    was    foreclosed."      But   if  the 

1  Dniikley  v.  Van  Buren,  supra  ;  Globe  Ins.  Co.  v.  Lansing, 
supra  ;  Hunt  v.  Lewin,  4  8te\v.  &  Port.  (Ala.)  138  (1833) ;  Aniovy 
V.  Fairbanks,  3  Mass.  562  (1793);  Taylor  v.  Townsend,  6  id. 
264  (1810). 

-'  White  V.  Williams,  2  Green  Ch.  (N.  J.)  376  (1836).  The  scire 
facias  practice  of  foreclosure  in  Illinois  gives  only  a  judgment  in 
rem;  see  Osgood  v.  Stevens,  25  111.  89  (1860),  for  an  illustration. 
Statutory  foreclosures  by  advertisement,  in  New  York  accomplish 
only  the  same  result. 

•^  New  York  Code,  §  1628 ;  Equitable  Life  Ins.  Co.  v.  Stevens, 
63  N.  Y.  341  (1875) ;  Matter  of  Collins,  17  Hun  (N.  Y.),  289 
(1879) ;  see  §  88,  post.  This  permission  is  not  required  in  Ohio  ; 
Avery  v.  Vansickle,  35  Ohio  fSt.  270  (1879)  ;  nor  in  Iowa,  but  an 
action  at  law  oti  the  debt  and  one  to  foreclose  the  mortgage  can- 
not be  maintained  at  the  same  time  ;  County  of  Dubuque  v. 
Koch,  17  Iowa,  229(1864) ;  Brown  v.  Cascaden,  43  id.  103  (1876). 
The  New  York  statute  (Code,  §  1628)  is  prohibitory  only  to  par- 
ties foreclosing,  and  does  not  apply  to  a  grantor  who  sues  his 


190  PARTIES    TO    MORTGAGE    FORECLOSURES. 

mortgagee  commences  his  action  without  first  obtaining 
permission  of  the  court,  he  can  afterwards  without  prej- 
udice procure  an  order  ex  parte,  nunc  pro  tunc,  granting 
permission.^  The  court  is  not  absolutely  bound  to  grant 
the  permission  ;  and  it  seems  that  where  the  mortgagee 
has  voluntarily  refrained  from'  asking  a  decree  for 
any  deficiency,  some  satisfactory  reason  must  be  assigned 
for  permitting  him  to  institute  a  separate  action  at  law 
for  its  recovery.'- 

§  86.  Theory  of  the  English  and  common-law  practice. 

When,  in  1786,  it  was  first  decided  that  the  mort- 
gagee after  a  foreclosure  sale  in  chancery  could  bring 
an  action  at  law  for  the  balance  of  the  debt  unpaid,  it 
was  a  universal  principle  of  practice,  and  one  which 
still  remains  in  force  in  some  states,  that  relief  in  equity 
and  also  at  law  could  not  be  decreed  in  the  same  action.^ 
It  was  for  this  reason  that  Chancellor  Kent  decided  in 
an  early  case,  that  on  a  bill  to  foreclose  a  mortgage,  the 
mortgagee  was  confined  to  his  remedy  on  the  mortgaged 
premises  and  that  the  suit  could  not  be  extended  to  the 
mortgagor's  other  property  nor  against  his  person,  in 
case  the  property  mortgaged  was  not  sufficient  to  pay  the 
debt  for  which  it  was  pledged;'  and  that  the  mortga- 

grantee  on  a  contract  of  assumption  of  payment  of  the  mortgage 
debt;  Scofield  V.  Doscher,  72  N.  Y.  494  (1878),  aff^  10  Hun, 
582  ;  Campbell  v.  8mith,  71  id.  26  (1877),  affV  8  Hun,  H. 

1  McKernau  v.  Robinson,  84  N.  Y.  105  (1881),  aff'g  23  Hun, 
289;  a.  nunc  pro  tunc  order  to  bring  and  continue  an  actioii  was 
granted  and  sustained  in  Earl  v.  David,  20  Hun  (N.  Y.),  527  ;  aff 'd 
86  N.  Y.  634  (1881). 

-  Equitable  Life  Ins.  Co.  v.  Stevens,  63  N.  Y.  341  (1875),  per 
Rapallo,  J. 

■'  2  Hilliard  on  Mortgages,  293. 


COMMON-LAW    ACTION    FOR    DEFICIENCY.  191 

gee's  further  remedy  was  at  law.^  A  court  of  chancery 
or  equity  could  not  ordinarily  decree  the  payment  of 
the  balance  remaining  unpaid  after  the  foreclosure,  unless 
the  debt  apart  from  the  mortgage  was  such  as  a  court  of 
chancery  would  have  jurisdiction  of  and  could  enforce. 
But  the  courts  in  some  states  have  departed  from 
this  rule  so  far  as  to  render  a  judgment  for  deficiency  in 
an  action  to  foreclose,  where  the  mortgagor  is  the  sole  de- 
fendant,'^ on  the  ground  that  an  action  against  him,  in 
which  a  decree  is  sought  for  the  foreclosure  of  the  title 
as  well  as  for  a  judgment  against  him  for  deficiency,  would 
not  embrace  different  causes  of  action,  but  different 
remedies  for  the  same  cause.^ 

When,  however,  a  judgment  for  deficiency  is  sought 
against  a  third  person  who  is  liable  for  the  debt,  another 
principle  of  law  interferes  and  prevents  his  being  made 
a  party  to  the  foreclosure.  It  has  always  been  a  rule 
of  practice  in  chancery  and  common-law,  as  well  as 
under  most  codes,  that  though  actions  arising  out  of  the 
same  transactions  or  connected  with  the  same  subject 
matter  umy  be  united  and  different  remedies  demanded 
therein,  yet  the  causes  of  action  must  be  so  united  and 
the  remedies  so  demanded  as  to  affect  all  parties  to  the 
action  in  the  same  manner,  and  to  bind  them  all  to  the 

1  Dunkley  v.  Van  Buien,  8  Johns.  Ch.  (N.  Y.)  380  (1818). 
See  Stevens  v.  Dufour,  1  Blackf.  (Ind.)  387  (1825);  see  the 
statute  of  1824,  and  Youse  v.  M'Creary,  2  id.  243  (1829) ;  Mar- 
kle  V.  Lapp,  2  id.  268,  holding  that  suit.' should  be  brought  iirst 
on  the  bond. 

-  In  Wightraan  v.  Gray,  10  Rich.  Eq.  (S.  C.)  518,  581  (1859), 
Chancellor  Wardlaw  reviews  the  history  of  this  question  in 
South  Carolina,  referring  to  the  act  of  1840.     Jones,  §  1711. 

•■'  In  point,  Fithian  v.  Monks,  48  Mo.  Rep.  502,  515  (18(39),  per 
"Wagner,  J.,  collating  and  reviewing  the  authorities  at  length. 
Jones,  §  1710. 


192  PARTIES    TO    MORTGAGE    FORECLOSURES. 

performance  of  the  same  judgment.^  This  rule  is  so 
fundamental  and  essential  that  no  system  of  law  or 
practice  can  do  without  it ;  it  can  be  departed  from 
only  with  the  sanction  of  statutory  provisions  in  special 
cases. 

§  87.  General  principles  —  statutory  provisions  modify- 
ing the  comnion-la-sv  rule. 

The  common-law  rule  of  procedure  for  the  collection 
of  an  unpaid  balance  in  a  foreclosure,  as  above  explained, 
has  been  modified  in  most  of  our  states,  as  will  be  ob- 
served by  reference  to  their  statutory  provisions  respect- 
ing foreclosures  conducted  by  equitable  actions.  The 
genera]  result  is,  that  in  an  action  to  foreclose  a  mort- 
gage a  judgment  in  personam'  against  the  mortgagor  and 

1  Jones,  §  1710. 

-  Xew  York  Code,  g  1627 ;  Hunt  v.  Lewin,  4  Stew,  and  Port. 
(Ala.),  138  (1888) ;  R.  C,  i;  8479  ;  Grirainell  v.  Warner,  21  Iowa, 
11  (1866) ;  Code  of  Iowa,  g  2084  ;  Cooley  v.  Hobart,  8  Iowa,  858 
(1859),  distingnishino-  Sands  v.  Wood,  1  id.  263  (1855),  and  Wilk- 
erson  v.  Daniels.  1  Green  (Iowa),  179,  188  (1848);  Rollins  v. 
Forbes,  10  Cal.  299  (1858) ;  Rowland  v.  Leiby,  14  id.  156  (1859) ; 
England  v.  Lewis,  25  id.  :^37  (1864) ;  Hunt  v.  Dohrs,  39  id.  304 
(1870) ;  Cormerais  v.  Genella,  22  id.  116  (1868),  oitinir  the  statutes 
of  1860  and  1861  :  Freedman  S.  &  T.  Co.  v.  Dodsre,^  8  Mc Arthur 
(D.  C),  529  (1879) ;  Duck  v.  Wilson,  19  Ind.  190  (1862) ;  Stevens 
V.  Campbell,  21  id.  471  (1863) ;  Kentuckv  Code,  i?  376,  formerly 
otherwise,  Crutchfield  v.  Coke,  6  J.  J.  M.  (Ky.)  90  (1881);  see 
also  Morscan  v.  Wilkins,  lb.  28 ;  Johnson  v.  Shepard,  85  Mich. 
115  (1876") ;  Kinff  v.  Safford,  19  Ohio  St.  587  (1869) ;  see  the  act  of 
February  19,  1864 ;  Conn  v.  Rhodes,  26  id.  644  (1875) ;  Fleming  v. 
Kerkendall,  81  id.  568  (1877);  Larimer  v.  Clemmer,  31  id.  499 
(1877).  In  Missouri  a  personal  judgment  for  a  deficiency  may  be 
recovered  against  the  mortgagor,  but  not  against  third  parties  who 
are  liable  for  the  mortgage  debt,  as  a  foreclosur?  in  that  state 
is  strictly  an  action  at  law,  and  not  in  equity  ;  Fithian  v.  Monks,  43 
Mo.  Rep.  502  (1869),  citing  the  statute.  In  Wisconsin  such  a 
decree  was  not  allowable  under  the  Revised  Statutes  of  1858  ; 
Borden  v.  Gilbert,  18  Wis.  670  (1861) ;  Walton  v.  Gooduow,  13  id. 
661  (1861).     Faesi  v.  Goetz,  15  id.  231  (1862),  stated  the  ground 


STATUTORY    PROVISIONS    FOR    DEFICIENCY.  193 

all  pcarties  licable  for  the  mortgage  debt  may  be  decreed 
for  any  residue  of  the  debt  remaining  unsatisfied  after  a 
sale  of  the  mortgaged  property,  and  the  application  of  the 
proceeds  pursuant  to  the  directions,  contained  in  the  de- 
cree. This  rule  differs  from  the  common-law  rule  in  the 
two  points  of  allowing  a  remedy  at  law  and  in  equity  to 
be  pursued  in  the  same  action,  and  of  allowing  the  joinder 
of  parties  who  are  not  interested  •  equally  or  in  the 
same  manner.  This  innovation  was  first  made  in  New 
York  by  the  adoption  of  the  Revised  Statutes;^  the 
original  statute  was  subsequently  incorporated  into  the 
first  Code,  and  reads  as  follows,  as  amended  in  the  Code 
of  1880 :  "Any  person  who  is  liable  to  the  plaintiff  for 
the  payment  of  the  debt  secured  by  the  mortgage,  may 
be  made  a  defendant  in  the  action ;  and  if  he  has  ap- 
peared, or  has  been  personally  served  with  the  summons, 
the  final  judgment  may  award  payment  by  him  of  the 
residue  of  the  debt  remaining  unsatisfied,  after  a  sale  of 
the  mortgaged  property,  and  the  application  of  the  j)ro- 
ceeds,  pursuant  to  the  directions   contained   therein."^ 

of  the  objection  to  such  a  decree  as  a  misjoinder  of  causes  of 
action.  But  the  Laws  of  1862,  chap.  243,  made  provisions  for 
judgments  of  deficiency  similar  to  those  of  the  New  York  statute; 
Burdick  v.  Burdick,  20  Wis.  348  (1866) ;  Baird  v.  McConkev,  20 
id.  297  (1866) ;  Bishop  v.  Douglass,  25  id.  696  (1870).  In  New 
Jersey  the  rule  was  for  many  years  the  same  as  it  now  is  in  New 
York  ;  Jarman  v.  Wiswall,  24  N.  J.  Eq.  267  (1873),  a  leading 
case ;  but  by  the  act  of  1880,  chap.  255,  it  was  provided  that  a 
decree  for  a  deficiency  should  not  be  entered  in  a  foreclosure 
against  parties  who  were  personally  liable  for  the  mortgage 
debt.  The  common-law  practice  of  a  separate  action  at  law  is 
now  the  only  procedure  in  that  state ;  Naar  v.  Union  and  Essex 
Land  Co.,  34  N.J.  Eq.  Ill  (1881);  Newark  Savings  Inst.  v. 
Forman,  33  id.  436  (1881) ;  Allen  v.  Allen,  34  id.  493  (1881). 

1  2N.  Y.  R.  S.  191. 

2  New  York  Code,  §  1627.     See  McCarthy  v.  Graham,  8  Paige 

13 


194  PARTIES    TO    MORTGAGE    FORECLOSURES. 

The  statutory  provisions  of  Wisconsin,  Nebraska,  North 
Carolina,  South  Carolina,^  Florida,  and  many  other 
states,  are  substantially  the  same. 

The  Supreme  Court  of  the  United  States  in  1864,  in 
order  to  assimilate  the  practice  in  the  Circuit  Courts  to 
the  general  practice  in  the  state  courts,  adopted  the 
rule  that  in  all  suits  in  equity  for  the  foreclosure  of 
mortgages  in  the  Circuit  Courts,  or  in  any  of  the  courts 
of  the  territories,  a  judgment  may  be  rendered  for  any 
deficiency  found  due  after  applying  the  proceeds  of  the 
sale  to  the  satisfaction  of  the  mortgage  debt.  This  rule 
applies  also  to  the  courts  of  the  District  of  Columbia.^ 

§  88.  Points  in  practice  —  the  complaint. 

When  statutory  provisions  first  allowed  a  judgment 
for  deficiency  to  be  rendered  against  all  persons  liable 
for  the  mortgage  debt  in  an  action  to  foreclose,  the 
courts,  to  protect  persons  so  liable,  adopted  a  rule  requir- 
ing the  plaintiif  to  state  his  cause  of  action  fully  in  his 
complaint,  and  also  to  make  a  specific  demand  that  the 
decree  of  foreclosure  adjudge  that  the  persons  so  liable 
pay  any  deficiency  which  might  arise,^  and  the  order  in 

(N.  Y.),  480  (1840);  Bank  of  Rochester  v.  Emerson,  10  id.  359 
(1843) :  Schwinger  v.  Hickok,  53  N.  Y.  283  (1873). 

1  Gray  v.  Tooraer,  5  Rich.  Law  (S.  C),  261,  266  (1852). 

2  Cross  V.  De  Valle,  1  Wall.  (U.  S.)  5  (1863) ;  7  Wash.Law  Re- 
porter, 2  ;  Jones,  §  17U9. 

3  Equitable  Life  Ins.  Co.  v.  Stevens,  1  N.  Y.  Wk.  Di^.  8  (1875); 
Luce  V.  Hinds,  Clarke  Ch.  (N.  Y.)  453,  457  (1841);  Leonard  v. 
Morris,  9  Paige  (N.  Y.),  90  (1841).  In  point,  Simonson  v.  Blake, 
20  How.  (N.  Y.)  484  (1861) ;  S.  C,  12  Abb.  (N.Y.)  33],  citing-  the 
old  Code,  §  275  ;  Manhattan  Life  Ins.  Co.  v.  Glover,  14  Hun 
(N.  Y.),  153  (1878);  Tucker  v.  Leland,  75  N.Y.  186  (1878); 
Foote  V.  Sprague,  13  Kas.  155  (1874) ;  Giddings  v.  Barney,  31 
Ohio  St.  80  (1876).  Whenever  a  judgment  for  a  deficiency  is 
demanded    against  a    married  woman,    facts   must  be  alleged 


DEMAND    FOR   DEFICIENCY    IN    THE    COMPLAINT.  195 

which  they  should  be  severally  liable.  It  often  occurs 
among  practicing  attorneys  that  the  demand  for  a  judg- 
ment of  deficiency  is  made  in  the  most  general  way, 
against  the  parties  personally  liable,  but  this  practice  is 
not  commendable ;  it  is  much  better  and  safer  to  make 
the  demand  specifically,  according  to  the  order  of  lia- 
bility of  the  several  persons  who  are  holden  for  the 
mortgage  debt. 

If  no  demand^  is  made  against  a  person  who  is  liable 
for  the  unpaid  balance,  judgment  cannot  be  taken  against 
him  ;  but  the  plaintiff  may  still  have  a  separate  action 
at  law,  not,  however,  without  leave  of  the  court  in  which 
the  action  to  foreclose  was  brought.  If  the  plaintiff 
intends  to  exercise  his  right  of  action  against  any  per- 
son so  liable,  it  is  best  to  do  so  in  the  action  to  fore- 
close, —  for,  when  application  is  made  for  leave  to 
bring  a  separate  action  at  law,  the  tendency  of  the 
courts  is  to  require  a  good  cause  for  the  same  to  be 
shown.-^  An  action  at  law  can  also  be  maintained  on 
the  note  or  bond,  or  the  covenant  in  the  mortgage, 
without  resorting  to  an  equitable  foreclosure,  in  order 
to  obtain  a  personal  judgment  against  those  liable  for  the 
payment  of  the  mortgage  debt.^     In  some  states  actions 

showing  the  liability  of  her  separate  estate ;  McGlanghlin  v. 
O'Rourke,  12  Iowa,  459  (1861). 

1  Giddiiigs  V.  Barney,  81  Ohio  St.  80  (1876). 

2  See  §  85,  mite,  and  the  cases  cited  on  this  point ;  Scofield  v. 
Doscher,  72  N.  Y.  491  (1878),  citing  Suydam  v.  Bartle,  9  Paige 
(N.  Y.),  294  (1841);  McKenan  v.  Robinson,  84  N.  Y.  105  (1881). 

3  Burr  V.  Beers,  24  N.  Y.  178  (1861) ;  Ober  v.  Gallagher,  93 
U.  S.  (8  Otto)  199  (1876) ;  Rosevelt  v.  Carpenter,  28  Barb.  (N.  Y.) 
426  (1858);  Brown  v.  Cascaden,  43  Iowa,  103  (187H) ;  Banta  v. 
Wood,  32  id.  469,  474  (1871);  Stephens  v.  Greene  Co.  Iron  Co., 
11  Ileiskell  (Tenn.),  71  (1872).  The  action  can  also  be  maintained 
against  any  person  who  has  guaranteed  the  payment  of  the  bond 
and  mortgage;  Hand  v.  Kennedy,  45  Supr.  Ct.  (N.  Y.)  385  (1879). 


196  PARTIES    TO    MORTGAGE    FORECLOSURES. 

at  law  on  the  bond,  and  for  foreclosure  in  equity,  can 
be  maintained  at  the  same  time.^ 

§  89.  Points  in  practice  —  the  decree  of  foreclosure. 

The  judgment  of  foreclosure  should  provide  in  the 
first  place,  if  the  proceeds  of  the  sale  are  insufficient  to 
pay  the  amount  reported  due  to  the  plaintiff,  with  the 
interest  and  expenses  of  the  sale  and  the  costs  of  the 
action,  that  the  referee  specify  the  amount  of  such  de- 
ficiency in  his  report  of  sale,  and  that  the  defendants 
personally  liable  for  the  mortgage  debt  pay  the  same  to 
the  plaintiff.-  Under  the  New  York  Code  direction  is 
also  made  for  the  payment  of  taxes,  assessments  and 
water  rates,  which  are  liens  upon  the  property  sold  f 
and  in  ascertaining  the  amount  of  the  deficiency  the 
taxes,  assessments,  etc.,  are  to  be  deducted  as  though 
they  were  a  part  of  the  original  debt.* 

The  judgment  should  provide  in  the  second  place, 
when  it  is  rendered  against  several  persons,  some  of 
whom  are  primarily  liable  as  principals,  and  others 
are  liable  only  secondarily  as  sureties,  that  it  be 
enforced  first  against  the  principal  debtors,  and 
then,    so   far   as   it   remains  unsatisfied  only,    against 

1  Ely  V.  Ely,  6  Gray  (Mass.),  439  (1856) ;  Fairman  v.  Farmer,  4 
Port.  (lud.)  436  (1853),  based  upon  the  statute  of  1831 ;  Very  v. 
Watkins,  18  Ark.  546(1857);  Brown  v.  Stewart,  1  Md.  Ch.  Dec. 
87  (1855) ;  Wilhelm  v.  Lee,  2  id.  322  (1856).  See  Mayer  v. 
Farmers'  Bk.,  44  Iowa,  212,  214  (1876),  and  Code,  §§  3163,  8164 
(1876),  holding  that  a  personal  judgment  recovered  on  the  bond 
will  be  a  lien  on  the  mortgaged  premises  from  the  date  of  the 
recording  of  the  mortgage,  and  that  the  premises  can  be  sold 
under  execution  on  the  judgment. 

2  New  York  Code,  §§  1626,  1627 ;  Supreme  Court  Rule  61 ; 
Thomas  on  Mortgages,  p.  282. 

3  New  York  Code,  §  1676. 
*  See  the  following  section. 


JUDGMENT  OF  DEFICIENCY  DIRECTED  IN  DECREE  OF  SALE.    197 

the  sureties  in  the  order  of  their  liability,  which  should 
also  be  fixed  ;^  upon  the  judgment  of  foreclosure,  as  it 
fixes  the  order  of  the  liability  of  the  sureties,  will  be 
based  the  judgment  for  deficiency.  In  a  case  where 
a  mortgagee  had  assigned  a  bond  and  mortgage,  guar- 
anteeing their  payment,  and  an  action  was  brought 
against  the  mortgagor  and  guarantor,  and  the  usual 
decree  of  foreclosure  and  sale  was  demanded  with  a 
judgment  for  deficiency  against  both.  Chancellor  Wal- 
worth held  as  to  the  proper  form  of  decree,  that  "  the 
proper  decree,  where  the  mortgagor  is  himself  a  party 
to  the  suit,  and  is  primarily  liable  for  the  payment  of 
the  deficiency,  and  a  third  person  is  made  a  party  de- 
fendant who  is  only  secondarily  liable,  is  to  decree  the 
payment  of  the  deficiency  by  the  principal  debtor  in 
the  first  instance ;  and  to  decree  payment  of  the  amount 
of  such  deficiency  against  his  co-defendant  who  stands 
in  the  situation  of  his  surety  merely,  only  in  case  it 
cannot  be  collected  of  the  principal  debtor,  after  the  re- 
turn of  an  execution  against  such  principal  debtor  un- 
satisfied. The  decree  in  such  cases  should  also  direct 
that,  in  case  the  amount  of  the  deficiency  is  paid  by 
the  defendant  who  is  only  secondarily  liable  for  such 
deficiency,  he  shall  have  the  benefit  of  the  decree,  for 
the  purpose  of  obtaining  satisfaction  for  the  same 
amount,  with  the  interest  thereon,  from  the  defendant 
who  is  primarily  liable.  *  ^  -^  After  the  usual  de- 
cree for  the  foreclosure  and  sale  of  the  mortgaged 
premises  and  the  payment  of  the  debt  and  costs  out  of 
the  proceeds  of  such  sale,  and  a  decree  over  against  the 

1  In  point,  Hand  v.  Kennedy,  45  Supr.  Ct.  (N.  Y.)  385  (1879); 
Youngs  V.  Trustees,  31  N.  J.  Eq.  290  (1879). 


198  PARTIES    TO    MORTGAGE    FORECLOSURES. 

mortgagor  personally  for  the  deficiency,  if  any,  the 
decree  must  farther  direct,  that  if  the  complainant  is 
not  able  to  collect  the  amount  of  such  deficiency  out  of 
the  estate  of  the  mortgagor,  upon  the  issuing  of  an  ex- 
ecution, against  his  property,  to  the  sheriff  of  the  county 
in  which  he  resides,  or  of  the  county  where  he  last  resided 
in  this  state,  the  defendants  (mortgagors),  upon  the  re- 
turn of  such  execution  unsatisfied,  pay  so  much  of  such 
deficiency  as  remains  unpaid.  *  *  *  The  decree 
must  further  direct  that,  if  they  pay  the  amount  thus 
decreed  against  them  personally,  or  if  the  same  is  col- 
lected out  of  their  property,  they  shall  have  the  benefit 
of  the  decree  against  the  mortgagor,  for  the  purpose  of 
enabling  them  to  obtain  remuneration  from  him,  to  the 
same  extent."^ 

And  the  judgment  for  foreclosure,  in  fixkig  the  order 
of  liability,  must  follow  the  demand  in  the  complaint, 
if  judgment  is  taken  by  default  or  upon  the  report  of  a 
referee.  This  judgment  is  not  a  personal  one  in  any 
sense, 'but  is  more  of  the  nature  of  a  judgment  in  rem ; 
the  plaintifi"  ciinnot,  therefore,  have  a  contingent  per- 
sonal judgment  in  the  decree  of  foreclosure  against  any 
of  the  defendants.-     Judgments  of  foreclosure  are  too 

1  Jones  V.  Steinberg,  1  Barb.  Ch.  (X.  Y.)  252  (1845).  In 
Luce  V.  Hinds,  Clarke  Ch.  (N.  Y.)  456  (1841),  a  case  similar  in 
all  respects  to  Jones  v.  Steinberg,  Vice-Chancellor  Whittlesey 
says,  "  I  shall  be,  therefore,  compelled  to  decree  against  the  de- 
fendant, according  to  the  prayer  of  the  complainant's  bill.  The 
order  must  be  a  reference  to  a  master  to  compute  the  amount 
due, —  the  final  order  will  be  for  the  sale  of  the  raortgaared  prem- 
ises, and  a  personal  decree  against  the  obligor,  Hinds,  for  the 
deficiency,  and  in  case  an  execution  against  Hinds  does  not 
realize  the  money,  an  execution  must  afterwards  go  against  Stow 
(guarantor)  for  any  balance  due  after  sale  of  the  premises,  and 
execution  unsatisfied  against  the  obligor  Hinds." 

2  Cobb  V.  Thornton,  8  How.  (N.  Y."  66  (1852);  See  Welp  v. 
Gunther,  48  Wis.  543,  (1881) 


JURISDICTION  OVER  THE  PERSON  NECESSARY.    199 

often  entered  without  decreeing  the  respective  liabil- 
ities of  the  different  parties  to  the  action.  This  may 
not  render  the  judgment  itself  defective  in  any  way, 
but  it  often  causes  litigation  among  the  defendants  in 
order  to  determine  their  respective  liabilities. 

A  judgment  for  deficiency  cannot  be  rendered  against 
a  person  liable  for  the  debt,  "  unless  he  has  appeared  or 
has  been  personally  served  with  the  summons  "  or  has 
submitted  himself  to  the  jurisdiction  of  the  court.^ 
Jurisdiction  over  the  person  is  a  prior  requisite  in  New 
York  practice,  and  doubtless  is  in  the  practice  of  other 
states.  Consequently  a  personal  judgment  for  deficiency 
cannot  be  obtained  against  anon-resident,  unless  he  ap- 
pears in  the  action;  and  though  such  a  judgment  be 
docketed  against  a  non-resident  after  service  by  publica- 
tion or  otherwise,  it  will  be  irregular  and  void.'"^ 

§  90.  Points  in  practice  —  the  judgment  for  deficiency. 

The  judgment  for  deficiency  which  courts  are  now 
generally  authorized  to  decree  against  parties  personally 
liable  for  the  mortgage  debt  is  a  judgment  for  the  bal- 
ance of  the  debt  remaining  unsatisfied  after  a  sale  of 
the  mortgaged  premises,  and  the  application  of  the  pro- 
ceeds of  the  sale  to  its  payment."  If  part  of  the  debt 
is  due  and  part  not  due,  the  judgment  for  deficiency  can 
be  rendered  only  for  what  is  due;  a  personal  judgment 

1  New  York  Codje,  §  1627 ;  the  same  rule  prevails  in  Ohio ; 
publication  of  the  snniraons  does  not  give  jurisdiction  for  a  personal 
judgment  against  a  defendant ;  Wood  v.  Stanberry,  21  Ohio  St. 
"142(1871). 

2  ISchwinger  v.  Hickok,  53  N.  Y.  280  (1873) ;  Gibbs  v.  Queen 
Ins.  Co.,  63  id.  131  (1875). 

3  See  Mutual  Life  Ins  Co.  v.  Southard,  25  N.  J.  Eq.  337  (1874), 
for  the  practice  in  New  Jersey,  which  is  very  similar  to  that  in 
New  York.     See  the  cases  cited  below. 


200  PARTIES    TO    MORTGAGE    FORECLOSURES. 

cannot  be  legally  rendered  for  a  debt  which  has  not 
matured.^  The  first  step  is  to  ascertain  the  amount  of 
the  unpaid  balance.  The  judgment  consequently  cannot 
be  rendered  even  contingently,  until  after  the  master  in 
chancery  or  the  referee  appointed  to  sell  has  made  and 
filed  his  report.'^  It  is  the  usual  practice  for  the  referee 
to  state  the  amount  of  deficiency  in  his  report  of  sale, 
and  upon  the  confirmation  of  the  report  to  docket  judg- 
ment for  the  deficiency;^  It  seems,  however,  from  recent 
decisions  that  a  confirmation  of  the  referee's  report  of 
sale  is  not  necessary  prior  to  issuing  execution.* 

The  sum  paid  for  the  premises  at  the  foreclosure  sale 
must  be  taken  as  a  conclusive  determination  of  their  value 

1  Skelton  v.  Ward,  51  Ind.  46  (1875);  Smith  v.  Osborn,  33  Mich. 
410  (1876). 

2  Cobb  V.  Thornton,  8  How.  (N.  Y.)  66  (1852).  See  Lipperd  v. 
Edwards,  39  Ind.  165  (1872). 

3  Bank  of  Rochester  v.  Emerson,  10  Paige  (N.  Y.),  359  (1843) ; 
McCarthy  v.  Graham,  8  id.  480  (1840) ;  Bache  v.  Doscher,  41  Supr. 
Ct.  (N.  Y.)  150  (1876) ;  aff' d  67  N.  Y.  429.  In  California  there 
can  be  no  judgment  for  a  deficiency  till  the  referee  has  made  his 
return  that  a  balance  remains  unpaid  after  the  sale.  Hunt  v. 
Dohrs,  39  Cal.  304  (1870),  citing  the  Practice  Act,  §  246.  See 
also  Rowland  v.  Leiby,  14  Cal.  156  (1859);  Englund  v.  Lewis, 
25  id.  337  (1864) ;  Culver  v.  Rogers,  28  id.  520  (1865) ;  Cormerais 
V.  Genella,  22  id.  116  (1863). 

4  Springsteen  v.  Gillett,  30  Hun  (N.  Y.),  260  (1883) ;  Moore  v. 
Shaw,  15  id.  428  (1878);  atf'd  77  N.  Y.  513  (1879);  Cobb  v. 
Thornton,  8  How.  (N.  Y.)  66  (1852) ;  Bache  v.  Doscher,  41  Supr. 
Ct.  (N.  Y.)  150  (1876) ;  aff'd  67  N.  Y.  429  ;  Bicknell  v.  Byrne,  23 
How.  (N.  Y.)  486  (1862).  In  Wisconsin  a  prior  order  of  confirma- 
tion is  necessary;    Laws  of  1862,  chap.  243;  Tormey  v,  Gerhart, 

41  Wis.  54  (1876) ;  also  in  Nebraska,  Clapp  v.  Maxwell,  13  Neb. 
542  (1883).  See  White  v.  Zust,  28  N.  J.  Eq.  107  (1877).  In 
Michigan  a  special  application  must  be  made  to  the  court,  before 
execution  can  issue  on  a  judgment  of  deficiency;  Gies  v.  Green, 

42  Mich.  107  (1881)  ;  McCricket  v.  Wilson,  50  id.  513  (1883).  In 
Leviston  v.  Swan,  33  Cal.  480  (1867),  it  was  held  that  the  clerk 
should  enter  up  judgment  for  the  deficiency  on  the  filing  of  the 
referee's  report  of  sale  without  the  further  order  of  the  court. 


HOW    AMOUNT    OF    DEFICIENCY    ASCERTAINED.  201 

as  between  the  parties  to  the  suit.^  In  determining  the 
amount  of  the  judgment  for  deficiency,  there  must  be 
deducted  from  the  proceeds  of  the  sale  the  costs  and 
expenses  of  the  plaintiff's  attorney  in  conducting  the 
action,  the  expenses  and  fees  of  the  referee  making  the 
sale,  and  all  taxes,'-  assessments  and  water  rates'^  which 
are  liens  upon  the  property  sold ;  the  amount  of  the 
proceeds  then  remaining  is  to  be  deducted  from  the 
amount  of  the  debt  and  interest  as  stated  in  the  decree 
of  foreclosure,  and  the  balance  will  furnish  the  amount 
for  the  judgment  of  deficiency.  It  has  been  held  erro- 
neous to  enter  a  judgment  of  deficiency  for  a  portion  of 
the  mortgage  debt  which  had  not  become  due,  although, 
because  the  premises  were  so  situated  that  they  could 
not  be  sold  in  parcels,  the  entire  proceeds  of  the  fore- 
closure sale  were  applied  to  pay  the  debt  due  and  to 
become  due.* 

1  In  point,  Snyder  v.  Blair,  33  N.  J.  Eq.  208  (1880),  collating 
and  reviewing  the  cases. 

2  New  York  Code,  §  1676;  Cornell  v.  Woodruff,  77  N.  Y.  203 
(1879) ;  Fleishaner  v.  Doellner,  60  How.  (N.  Y.)  438  (1881). 

3  Marshall  v.  Davies,  78  N.  Y.  414,  422  (1879),  reversing  16 
Hun,  606  ;  Argald  v.  Pitts,  78  N.  Y.  239  (1879) ;  Cornell  v.  Wood- 
ruff, 77  id.  205  (1879). 

4  Danforth  v.  Coleman,  23  Wis.  528  (1868) ;  Taggert  v.  San 
Antonio,  etc.,  18  Cal.  460  (1861) ;  Skelton  v.  Ward,  51  Ind.  46 
(1875);  Darrow  v.  ScuUin,  19  Kans.  57  (1880);  Smith  v.  Osborn, 
33  Mich.  410  (1875). 


CHAPTER  I. 

PARTIES     ORIGINALLY    LIABLE. 

§  91.     Introductory. 

92.  Mortgagor  signing  the  bond  or  note,  or  covenanting  in 

the  mortgage  payment  of  the  debt,  liable. 

93.  All    persons    signing    the    bond   or   note   which  the 

mortgage  accompanies,  liable. 

94.  All  persons  guaranteeing  the  bond  and  mortgage  at 

its  inception,  liable. 

95.  A  married  woman,  signing  the  bond  or  other  obliga- 

tion, liable  — general  principles. 

96.  A  married  woman  signing  the  bond  or  other  obligation, 

liable  —  act  of  1884  in  New  York. 

97.  A  married  woman  signing  the  bond  or  other  obligation, 

liable — rule  in  New  York  prior  to  1884,  and  in  most 
states  at  present. 

98.  Persons     originally    liable,    deceased,    their     estates 

liable  ;  personal  representatives  proper  parties. 

99.  Persons   originally   liable,  deceased,  their   heirs  and 

devisees  not  proper  parties. 
100.     A  person  originally  liable  making  an  assignment  in 
bankruptcy  or  voluntarily,  assignee  proper. 

§  91.  Introductory. 

For  the  purpose  of  a  logical  analysis,  this  part  of  the 
work  will  be  considered  under  the  sub-divisions,  Parties 
Originally  Liable  and  Parties  Suhseqiiently  Liable.  Some 
writers  have  considered  the  following  subject-matter 
under  the  headings,  Parties  Primarily  Liable  and  Parties 
Secondarily  Liable ;  but  this  division  is  not  logical  ex- 
cept as  primary  means  original,  and  secondary  means 
subsequent;    furthermore,   the  words    "  primary"   and 


INTRODUCTORY.  203 

"  secondary  "  are  too  suggestive  of  the  relation  of  prin- 
cipal and  surety,  which  would  certainly  not  be  a  logical 
division  of  this  subject,  as  the  relation  is  so  variable 
and  subject  to  change  whenever  a  new  party  becomes 
related  to  a  bond  and  mortgage  in  such  a  way  as  to 
make  himself  personally  liable  for  the  debt. 

The  logical  division.  Original  and  Subsequent,  also 
furnishes  an  opportunity  to  consider  the  parties  liable 
in  chronological  order.  In  this  chapter,  then,  attention 
is  to  be  given  to  parties  who  originally  became  liable 
for  the  mortgage  debt, — that  is,  to  those  who  became 
liable  at  the  inception  of  the  bond  and  mortgage.  It 
is  to  be  remarked  again,  that  parties  are  not  considered 
with  reference  to  their  being  "  necessary  "  or  "  proper," 
but  with  reference  to  their  liability,  it  remaining  at 
the  option  of  the  plaintiff  whether  he  will  make  them 
parties  or  not,  due  regard  being  always  had  to  the  rela- 
tion of  principal  and  surety. 

§  92.  Mortgagor  signing  the  bond  or  note,  or  covenanting 
in  the  mortgage  payment  of  the  debt,  liable. 

The  fact  that  a  mortgagor  who  signs  a  bond  or  note, 
which  is  accompanied  by  a  mortgage,  for  the  payment 
of  a  sum  of  money,  or  who  covenants  in  the  mortgage 
without  a  bond  or  note  to  pay  the  same,  is  liable  for  the 
payment  of  that  sum,  rests  upon  the  fundamental  prin- 
ciple of  law,  that  every  man  must  perform  his  contracts 
and  is  liable  for  any  breach  of  them.^     There  is  scarcely 

1  Leonard  v.  Morris,  9  Paige  (N.  Y.),  90  (1841) ;  Bank  of  Roch- 
ester V.  Emerson,  10  id.  859  (1848) ;  Marsh  v.  Pike,  10  id.  595 
(1844);  Cartiss  v.  Tripp,  Clarke  Ch.  (N.  Y.)  817(1840);  >Schwinger 
V.  Hickok,  53  N.  Y.  280  (1878);  Hunt  v.  Chapman,  51  id  555 
(1878).  See  National  Fire  Ins.  Co.  v.  McKay,  21  id.  191,  193 
(1860),  where  Comstock,  Cir.  J.,  says  ohUer  •  "  H.  was  the  mort- 


204  PARTIES    TO    MORTGAGE    FORECLOSURES. 

a  case  in  which  the  question  of  deficiency  is  considered 
that  does  not  give  an  obiter  dictum,  that  the  mort- 
gagor is  the  first  person  to  become  liable  for  the  pay- 
ment of  the  debt.^  That  his  relation  as  principal  may 
be  changed  to  that  of  surety,  will  be  seen  hereafter ; 
but  his  name  once  subscribed  to  the  contract  of  indebt- 
edness, he  will  always  remain  liable. 

If  no  note,  bond  or  other  legal  obligation  was  given 
with  the  mortgage,  the  plaintiff  will  be  confined  to  the 
mortgaged  premises  for  his  remedy,'-  unless  the  claim  on 
which  the  mortgage  is  founded  was  an  equitable  one,^  or 
there  was  a  debt  existing  independent  of  the  mortgage.^ 
The  same  is  true  where  the  debt  is  barred  by  the  stat- 
ute of  limitations,  or  the  obligor  has  been  discharged  in 
bankruptcy  proceedings.'^ 

gagor  and  was  personally  bound  for  the  payment  of  the  debt." 
See  Wadsworth  v.  Lyon,  93  N.  Y.  201  (1888);  Siiell  v.  Stanley, 
58  111.  31  (1871)  ;  Stevens  v.  Campbell,  21  Ind.  471  (1863);  Price 
V.  State  Bank,  14  Ark.  50  (1853) ;  Foote  v.  Spragiie,  13  Kas.  155 
(1874) ;  Darrow  v.  ScuUiii,  19  id.  57  (1877),  where  the  notes  were 
all  due  by  the  terms  of  an  interest  clause  and  judgment  for  the 
whole  amount  was  held  proper ;  Conn.  Mut.  Life  Ins.  Co.  v.  Tyler, 
8  Biss.  C.  Ct.  (U.  S.)  369  (1878),  holding  that  the  fact  that  a  mort- 
gagor has  conveyed  his  equity  of  redemption  in  the  premises 
does  not  release  him  from  his  personal  liability  on  the  bond.  See 
contra  in  New  Jersey  since  the  act  of  1880,  which  provides  that  a 
judiJ-ment  for  deficiency  shall  not  be  decreed  in  a  foreclosure; 
Naar  v.  Union  &  E.  L.  Co.,  34  N.  J.  Eq.  Ill  (1882);  Allen  v. 
Allen,  lb.  493  (1882). 

1  Calvo  V.  Davies,  73  N.  Y.  211,  215  (1878);  Birnie  v.  Main, 
29  Ark.  591  (1874). 

2  Coleman  v.  Van  Rensselaer,  44  How.  (N.  Y.)  368  (1873); 
Fletcher  v.  Holmes,  25  Ind.  458  (1865) ;  Van  Brunt  v.  Mismer,  8 
Minn.  232  (1863);  Hunt  v.  Lewin,  4  Stew.  &  Port.  (Ala.)  138 
(1833). 

3  Jones,  §  1711. 

4  Gaylord  v.  Knapp,  15  Hun  (N.  Y.),  87  (1878).  "  Every  mort- 
gage implies  a  loan  and  every  loan  a  debt ;"  Critcher  v.  Walker, 
1  Murphy  (N.  C),  488  (1810) ;  Jones,  §  1715. 

5  Kinlock  v.  Mordecai,  1  Speex's  Eq.  (S.  C.)  464  (1844). 


ALL    PERSONS    SIGNING    THE    BOND    LIABLE.  205 

§  93.  All  persons  signing  the  bond  or    note   ■which  the 
mortgage  accompanies,  liable. 

In  an  action  to  foreclose  a  bond  and  mortgage, 
where  the  bond  has  been  executed  b}^  persons  other 
than  the  mortgagors,  as  well  as  bj  the  mortgagors, 
it  is  proper  to  make  such  obligors  parties  to  the 
action  and  to  demand  against  any  or  all  of  them 
a  judgment  for  deficiency,  as  they  are  all  liable 
upon  the  bond  for  the  debt.^  This  is  also  true  if 
the  instrument  of  indebtedness  is  a  note''  or  other  form 
of  obligation.^  The  authority  to  join  such  obligors  in 
an  action  to  foreclose  a  mortgage  and  to  demand  a  per- 
sonal judgment  for  deficiency  against  them  is  derived 
from  the  codes  and  statutes  of  the  several  states.^  In 
a  recent  foreclosure  in  New  York,  where  the  bond  had 
been  signed  by  others  than  the  mortgagors,  the  court 
held  :  "  The  Revised  Statutes  provide  that  if  the  mort- 
gage debt  be  secured  by  the  obligation  or  other  evidence 
of  debt,  of  any  other  person  besides  the  mortgagor,  the 
complainant  may  make  such  person  a  party  to  the  bill, 
and  the  court  may  decree  payment  of  the  balance  of  such 
debt  remaining  unsatisfied  after  a  sale  of  the  mortgaged 
premises,  as  well  against  such  other  person  as  the  mort- 
gagor, and  may  enforce  such  decree  as  in  other  cases. 
The  same  provision  is,  in  substance,  continued  in  the 
Code.  These  authorities  justify  the  plaintiff  in  joining 
in  this  action  all  the  parties  to  the  bond,  the  payment 

1  Thoriie  v.  Newby,  59  How.  (N.  Y.)  120  (1880) ;  Scofield  v. 
Dosc'her,  72  N.  Y.  491  (1878) ;  in  point,  »uydam  v.  Bartle,  9 
Paige  (N.  Y.),  294,  295  (1841) ;  Bathgate  v.  Haskin,  59  N.  Y. 
£33  (1875). 

2  Davenport  Plow  Co.  v.  Mewis,  10  Neb.  317  (1880). 

3  Fond  du  Lac  Harrow  Co.  v.  Haskins,  51  Wis.  135  (1881). 
*  New  York  Code,  §  1027.     ^ 


206  PARTIES    TO    MORTGAGE    FORECLOSURES. 

of  which  is  secured  by  the  mortgage  sought  to  be  fore- 
closed, and  in  demanding  a  judgment  against  all  the 
obligors  for  any  deficiency  which  may  arise."^  If  a 
husband  executes  with  his  wife  a  bond,  to  secure  which 
a  mortgage  is  given  on  her  separate  real  estate,  he  will 
be  liable  for  a  personal  judgment  in  a  foreclosure.^  A 
person  who  has  signed  the  bond  or  note,  but  not  the 
mortgage,  is  not  an  indispensable  party  to  maintain  the 
action  or  to  perfect  the  title,  as  he  has  no  interest  in 
the  premises.^ 

Where  statutory  provision  has  not  been  made  for 
judgments  of  deficiency,  the  obligation  upon  the  bond 
can  be  enforced  only  by  a  separate  action  at  law. 
Folger,  J.,  has  said,  in  considering  this  question,  that 
the  statute  "  was  enacted  to  give  the  court  in  which  the 
foreclosure  of  the  mortgage  was  had  full  jurisdiction 
over  the  whole  subject,  and  to  save  the  necessity  of 
actions  at  law,  and  to  allow  one  court  to  dispose  of  the 
whole  subject,  instead  of  compelling  parties  to  resort  to 
other  tribunals  -^  *  *  ^  and  is  applicable  to  every 
case  where  the  owner  of  the  mortgage  has  any  personal 
security  for  the  mortgage  debt,  whether  it  be  the  bond 
of  the  mortgagor  or  the  covenant  of  another  person."  * 

1  Thorne  v.  Newby,  supra,  per  Van  Vorst,  J.;  Sprague  v.  Jones, 
9  Paig-e  (N.  Y.),  895  (1842),  was  very  similar,  in  that  the  bond 
was  signed  by  two  persons  and  the  mortgage  by  only  one  ;  both 
obligors  on  the  bond  were  held  liable  for  a  iudgmentof  deficiency. 

2  Conde  V.  Hhepard,  4  How.  (N.  Y.)  75 '(1849). 

3  Deland  v.  MRrshon,  7  Clark  (Iowa),  70  (1858).  In  Milroy  v. 
Stockwell,  1  Carter  (Ind.),  35  (1848),  it  was  held  that  such  an 
obligor  was  a  necessary  party,  and  that  npon  his  death  the  action 
should  be  revived  against  his  personal  representatives. 

*  Scofield  V.  Doscher,  72  N.  Y.  491,  493  (1878). 


GUARANTORS    OF    BOND    AND    MORTGAGE    LIABLE.        207 

§  94.  All  persons  guaranteeing  the  bond  and  mortgage  at 
its  inception,  liable. 

All  persons  who  guarantee  the  payment  or  collection 
of  a  bond  and  mortgage  by  a  separate  instrument,  at 
the  time  of  their  execution  or  before  their  transfer, 
are  liable  for  the  mortgage  debt  and  may  be  made 
parties  to  an  action  to  foreclose  for  the  purpose  of 
recovering  a  judgment  for  deficiency  against  them  as 
stated  in  the  foregoing  section,^ 

There  are  almost  no  cases  ruling  directly  upon  this 
question,  but  from  analogous  cases'  and  the  general 
principles  of  law  applicable  to  guarantors  and  sureties, 
the  proposition  of  this  section  is  unquestionably  true. 
In  an  action  where  it  appeared  that  the  mortgagee  had 
assigned  his  mortgage,  guaranteeing  its  payment,  and 
subsequently  taken  the  bond  of  a  third  person  as  a  further 
security  for  the  payment  of  such  mortgage,  Chancellor 
Walworth  held  that  the  third  person  was  liable  for  a 
judgment  of  deficiency  in  the  foreclosure,  saying,  "It 
is  well  settled,  however,  that  where  a  surety,  or  a 
person  standing  in  the  situation  of  a  surety,  for  the 
payment  of  a  debt,  receives  a  security  for  his  indemnity 
and  to  discharge  such  indebtedness,  the  principal 
creditor  is,  in  equity,  entitled  to  the  full  benefit  of  that 
security."  ^ 

1  Giiion  V.  Knapp,  6  Paige  (N.  Y.),  48  (1836) ;  Curtis  v.  Tyler, 
9  id.  485  (1842) ;  Mathews  v.  Aikin,  I  N.  Y.  595  (1848) ;  Burdick 
V.  Burdick,  20  Wis.  348  (1866).  See  Hunt  v.  Purdy,  82  N.  Y. 
486  (1880) ;  Grant  v.  Griswold,  82  id.  569  (1880). 

2  Curtis  V.  Tyler,  supra  ;  Luce  v.  Hinds,  Clarke  Ch.  (N.  Y.)  453 
(1841);  Jones  v.  Steinbergh,  1  Barb.  Ch.  (N.  Y.)  250  (1845); 
Bristol  V.  Morgan,  3  Edw.  Ch.  (N.  Y.)  142  (1837). 

^  Curtis  V.  Tyler,  supra,  giving  citations  in  point.  In  Maure 
V.  Harrison,  1  Eq.  Ca.  Abr.  (Eng.)  98  (1692),  it  was  held  that  in 
equity  a  bond  creditor  was  entitled  to  the  benefit  of  all  counter- 


208  PARTIES    TO    MORTGAGE    FORECLOSURES. 

§  95.  A  married  w^oman  signing  the  bond  or  other  obliga- 
tion, liable  —  general  principles. 

With  the  general  growth  during  the  past  century  in 
England  and  America  of  legislation  and  decisions,  en- 
larging the  powers  of  married  women  over  the  dispo- 
sition of  their  property,  there  has  been  developed  a  cor- 
responding or  correlative  line  of  decisions  in  the  courts, 
holding  them  and  their  separate  estates  responsible  for 
any  breach  of  their  contracts.  It  is  not  within  the 
scope  of  this  w^ork  to  discuss  the  history  or  principles 
of  this  very  interesting  branch  of  the  law.^  Our  at- 
tention must  be  confined  simply  to  a  general  statement 
of  the  latest  rulings  of  the  courts  upon  the  question  of 
a  married  woman's  liability  for  the  payment  of  a  mort- 
gage debt,  and  to  showing  that  she  is  a  proper  party  to 
a  foreclosure,  if  a  judgment  for  deficiency  is  desired 
against  her.  The  common -law  doctrine,  which  ren- 
dered a  married  woman  totally  incapable  of  making 
contracts,  practically  remains  in  force  in  no  state,  but 
has  been  modified  by  legislation  or  innovations  of  the 
courts,  until,  at  present,  it  is  a  universal  rule  that  a  mar- 
ried woman  can  biiid  her  separate  estate  for  all  pur- 
poses that  may  be  necessary  to  enable  her  to  hold  and 
enjoy  the  same. 

bonds  or  collateral  securities  given  by  the  principal  debtor  to  his 
surety, 

^  The  history  of  the  law  affecting  married  women's  contracts 
and  their  control  of  their  separate  property  is  ably  discussed  by 
Leonard  A.  Jones  in  his  Treatise  on  Mortgages,  §§  106-218. 
The  history  and  principles  of  the  same  law  in  the  state  of  New 
York  are  given  in  greater  detail  by  Abner  C.  Thomas  in  his 
Treatise  on  the  Law  of  Mortgages,  p.  195.  To  the  student  of 
equity  jurisprudence,  the  development  of  this  branch  of  the  law  in 
England  and  America  is  very  interesting,  as  its  different  stages 
can  be  so  accurately  traced  in  the  legislation  and  decisions  of 
the  two  countries. 


MARRIED    woman's    ACT    OF    1884    IN    NEW    YORK.       209 

§  96.  A  married  woman   signing   the  bond  or  other  ob- 
ligation, liable  —  act  of  1884  in  New  York. 

The  New  York  act  of  1884  in  relation  to  the  rights 
and  liabilities  of  married  women  has  rendered  obsolete  a 
great  majority  of  the  decisions  adjudicating  the  liabil- 
ities of  married  women  and  their  separate  estates  for 
the  performance  of  their  contracts  under  the  acts  of 
1848-49  and  1860-62.  That  act  provides  that  "A 
married  woman  may  contract  to  the  same  extent,  with 
like  effect  and  in  the  same  form  as  if  unmarried,  and 
she  and  her  separate  estate  shall  be  liable  thereon, 
whether  such  contract  relates  to  her  separate  business 
or  estate  or  otherwise,  and  in  no  case  shall  a  charge 
upon  her  separate  estate  be  necessary."^ 

1  Laws  of  1884,  chap.  381.  This  act  was  passed  May  28, 
1884,  and  by  its  provisions  took  effect  immediately,  so  that  all 
contracts  made  prior  to  May  28,  1884,  are  to  be  adjudicated  ac- 
cording f,o  the  statutes  and  decisions  in  force  prior  to  that  date. 
It  is  also  provided,  "  that  this  act  shall  not  affect  nor  apply  to  any 
contract  that  shall  be  made  between  husband  and  wife." 

The  position  of  Sanpord  E.  Church,  Chief  Judge  of  the  New 
York  Court  of  Appeals,  in  relation  to  questions  affecting  a  married 
woman's  liability  for  her  contracts,  must  be  recognized  here  ;  his 
opinions  have,  undoubtedly,  had  a  strong  influence  in  effecting 
the  passage  of  this  act.  His  decisions  have,  at  least,  been  almost 
prophetic.  In  the  leading  case  of  the  Manhattan  B.  &  M.  Co. 
V.  Thompson,  58  N.  Y.  84  (1874),  he  said:  "If,  when  the  legis- 
lature changed  the  common  law  in  essential  particulars  in  re- 
garding the  interest  in  property  of  the  husband  and  wife  to  a 
considerable  extent  as  distinct  and  independent,  and  in  recog- 
nizing the  capacity  of  the  wife  to  judge  and  provide  for  what  her 
own  welfare  requires  in  acquiring  and  holding  the  legal  title  to 
property,  and  managing  and  disposing  of  the  same  as  if  unmar- 
ried and  without  subjection  to  the  control  of  her  husband,  the 
courts  had  adopted  as  a  reasonable  and  legitimate  sequence,  the 
correlative  rule  of  capacity  to  contract  debts  as  if  unmarried, 
restricted  only  to  their  collection  from  separate  property,  it  might 
well  be  claimed  that  the  rights  of  married  women  would  have 
been  as  well  if  not  better  protected  practically,  sound  public 

14 


210  PARTIES    TO    MORTGAGE    FORECLOSURES. 

This  law  can,  of  course,  have  no  ex  post  facto  applica- 
tion and  for  a  decade,  at  least,  the  decisions  under  the 
old  statutes  will  be  of  importance,  and  must  be  ap- 
plied to  cases  arising  on  contracts  made  prior  to  1884. 
All  decisions  which  have  been  rendered  in  New  York 
upon  the  liability  of  a  person  obligated  for  a  mort- 
gage debt  to  have  a  judgment  for  deficiency  rendered 
against  him  will,  hereafter,  apply  with  equal  force  to  a 
married  woman.  In  Massachusetts^  and  some  other 
states,  substantially  the  same  law  is  in  force,  while  in 
England  the  courts  of  equity  have  never  held  otherwise 
than  that  a  married  woman's  separate  estate  was  liable 
for  every  debt  she  might  contract  in  any  way.  Regard- 
ing her  separate  estate  she  can  contract  as  freely  as  a 
man;  and  her  estate  is  equally  liable  for  all  her  obliga- 
tions, whatever  their  form  or  nature."  At  law,  how- 
ever, she  and  her  separate  estate  are  not  liable. 

§  97.  A  married  -woman  signing  the  bond  or  other  obliga- 
tion, liable  —  rule  in  New^  York  prior  to  1884,  and 
in  most  states  at  present. 

The  decisions  which  make  a  married  woman  who  has 
signed  a  bond  or  other  obligation,  to  which  a  mortgage 

policy,  and  business  morality  more  promoted,  and  a  flood  of  ex- 
pensive and  vexatious  litigation  prevented. 

"  Courts  of  equity  in  England  have  uniformly  exercised  a  power 
of  enforcing  contracts  of  married  women  against  their  separate 
estates,  which  has  practically  produced  this  result  (2  P.  Wms. 
144;  1  Cr.  &  Ph.  48).  But  our  courts  have  adopted  more  con- 
servative principles,  and  it  is  better  to  adhere  to  them  until  the 
legislature  in  its  wisdom  and  poioer  shall  see  fit  to  change  them." 
To  the  same  effect  is  his  opinion  in  Yale  v.  Dederer  (68  N.  Y. 
334  (1877).  This  case  was  three  times  before  the  Court  of  Ap- 
peals (18  N.  Y.  265  ;  22  id.  450  ;  68  id.  334). 

1  Jones,  §  112. 

2  Manhattan  B.  &  M.  Co.  v.  Thompson,  58  N.  Y.  85  (1874); 
Yale  v.  Dederer,  22  id.  450  (1860) ;  Jones,  §  112. 


LIABILITY    OF    MARRIED    WOMAN    ON    BOND.  211 

is  collateral,  liable  fora  judgment  of  deficiency  in  an  action 
to  foreclose  a  mortgage,  are,  under  the  same  state  of 
facts,  precisely  the  same  in  their  reasoning  and  conclu- 
sions as  those  which  establish  her  liability  for  the  per- 
formance of  her  other  contracts.  The  cases  are  numerous 
in  fixing  her  liability  upon  ordinary  contracts,  and  by 
analogy  are  applicable  to  her  liability  in  mortgage  fore- 
closures where  a  judgment  for  deficiency  is  sought 
against  her.^  Church,  Ch.  J.,  who  made  a  careful  study 
of  the  liability  of  the  separate  estate  of  a  married 
woman  for  her  contracts,  concluded  that  such  lia- 
bility may  be  enforced,  —  1.  When  created  in  or  about 
carrying  on  a  separate  trade  or  business  of  the  wife  (35 
Barb.  78;  58N.Y.  422);  2.  When  the  contract  relates  to, 
or  is  made  for  the  benefit  of,  her  separate  estate  (36  N.  Y. 
600;  37  id.  35);  3.  When  the  intention  to  charge  her 
separate  estate  is  expressed  in  the  instrument  or  contract 
by  which  the  liability  is  created'  (18  N.  Y.  265  ;  22  id. 
450).    These  three  propositions  substantially  embody  the 

1  If  the  wife  has  signed  the  mortgage  alone  and  not  the  bond, 
it  will  be  erroneous  to  demand  a  personal  ind£;-ment  ag^ainst  her; 
Gebhart  v.  Hadley,  19  Ind.  270  (1862) ;  in  Buell  v.  Shuman,  28  id. 
464  (1867),  she  had  siijned  the  note  also,  but  was  held  not  personally 
liable.  Rogers  v.  Weil,  12  Wis.  664  (1860).  In  Brick  v.  Scott,  47 
lud.  299(1874),  the  court  went  so  far  as  to  hold  void  a  mortgage 
given  on  her  separate  estate,  the  proceeds  of  which  Avent  to  the 
husband ;  apparently  overruled,  however,  in  Herron  v.  Herron,  91 
Ind.  278  (1883).  See  also  Martin  v.  Cauble,  72  id.  67  (1880); 
Moffitt  v.  Roche,  77  id.  48  (1881) ;  McCarty  v.  Tarr,  88  id.  444 
(1882).  In  Sperry  v.  Dickinson,  82  id.  132  (1882),  the  wife 
covenanted  in  the  mortgage  to  pay  a  note,  and  she  was  held  liable. 
See  Merchants'  Nat.  Bk.  v.  Raymond,  27  Wis.  567  (1871),  where 
no  question  seems  raised  but  that  a  feme  covert  is  bound  as  much 
by  her  contracts  as  a  feme  sole. 

2  Mack  v.  Austin,  29  Hun  (N.  Y.),  534  (1883).  See  Penn. 
Coal  Co.  V.  Blake,  85  N.  Y.  226  (1881) ;  McGlaughlin  v.  O'Rourke, 
12  Iowa,  459  (1861) ;  Brick  v.  Scott,  47  Ind.  299  (1874) ;  Layman 
V.  Shultz,  60  id.  541  (1878). 


212  PARTIES    TO    MORTGAGE    FORECLOSURES. 

law  as  it  exists  in  most  of  the  states;  some  states  follow 
the  rule  of  the  English  courts  of  equity  as  stated  in  the 
preceding  section,  and  a  few  have  gone  as  far  as  New  York 
in  the  act  of  1884.  "The  general  principles  applicable 
to  this  subject  have  been  too  firmly  settled  by  repeated 
adjudications,  to  justify  a  reconsideration  of  the  grounds 
upon  which  they  were  arrived  at.  The  most  import- 
ant of  these  principles  is,  that  the  statutes  of  1848-49 
and  1860-62,  did  not  operate  to  remove  the  general  disa- 
bility of  married  women  to  bind  themselves  by  their 
contracts,  not  even  to  the  extent  of  their  separate  estates. 
This  made  it  necessary  to  define  specifically,  in  what 
cases  and  under  what  circumstances  such  contracts 
could  or  ought  to  be  enforced  against  their  separate 
property,  and  the  difficulty  of  accomplishing  this  pur- 
pose,has  led  to  most  of  the  litigation  on  the  subject."^ 
To  the  above  must  be  added  a  fourth  proposition, 
that  a  mortgage  given  by  a  married  woman  on  her  sep- 
arate estate  is  always  valid  against  her  to  the  extent 
of  the  value  of  the  mortgaged  lands,  the  reason  for  this 
being  that  the  mortgage  is  a  specific  charge  upon  a  specific 
part  of  her  separate  estate  ; — "  an  appropriation  only  of 
so  much  of  her  estate  as  the  mortgage  covers."'-^     This 

1  Manhattan  B.  &  M.  Co.  v.  Thompson,  58  N.  Y.  82  (1874), 
per  Church,  Ch.  J.,  citing  Yale  v,  Dederer,  18  id.  282  (1858); 
22  id.  460  (1860) ;  68  id.  329  (1877) ;  Owens  v.  Cawley,  36  id. 
600  (1867) ;  Ballin  v.  Dillaye,  37  id.  35  (1867) ;  Corn  E.  Ins.  Co.  v. 
Babcock,  42  id.  613  (1870)  ;  S.  C,  35  How.  (N.  Y.)  216  ;  Vroo- 
man  v.  Turner,  8  Hun  (N.  Y.),  78  (1876)  ;  reversed  in  part,  69 
N.  Y.  280  ;  contra,  Brown  v.  Herman,  14  Abb.  (N.  Y.)  394  (1862). 

2  Man.  L.  Ins.  Co.  v.  Glover,  14  Hun  (N.  Y.),  154  (1878); 
Payne  v.  Burnham,  62  N.  Y.  74  (1875) ;  Corn  E.  Ins.  Co.  v.  Bab- 
cock, 42  id.  613  (1870);  Kidd  v.  Conway,  65  Barb.  (N.  Y.)  158 
(1873);  See  Spear  v.  Ward,  20  Cal.  660  (1862);  Eaton  v.  Nason, 
47  Me.  132  (1860) ;  HoUis  v.  Francois,  5  Texas,  195  (1849) ;  Voor- 
hies  V.  Granberry,  5  Baxter  (Tenn.),  704  (1875) ;  Black  v.  Gal- 
way,  24  Penn.  St.  18  (1854).    See  Penn.  act  of  1848. 


LIABILITY    OF    MARRIED    WOMAN    ON    BOND.  213 

proposition  is  universally  sustained  in  the  English  and 
American  courts,  and  for  its  reason  relates  back  to  the 
broad  principle  that  a  married  woman  can  mortgage 
her  real  estate.^ 

Payne  v.  Burnham'^-  in  which  also  the  opinion  is 
written  by  Church,  Ch.  J.,  is  a  leading  case  upon  the 
question  of  a  married  woman's  liability  for  a  judgment 
of  deficiency  in  the  foreclosure  of  a  bond  and  mortgage 
which  she  executed  jointly  with  her  husband.  The  mort- 
gage in  that  case  was  executed  on  her  separate  estate, 
but  she  received  no  part  of  the  loan,  the  entire  amount 
going  to  her  husband  ;  she  was  held  not  liable  for  a  judg- 
ment of  deficiency.  If,  however,  she  had  received  a  part 
only  of  the  consideration  for  which  the  bond  signed  by 
her  was  given,  she  would  have  been  held  liable  for  the 
deficiency.'^  In  a  case  where  a  married  woman  re- 
ceived the  consideration  of  a  mortgage  upon  her  prom- 
ise to  repay  it,  it  was  held  that  it  was  borrowed  for  the 
benefit  of  her  separate  estate.  She  answered  that  she 
was  a  married  woman  not  carrying  on  any  separate 
business  ;  a  demurrer  to  the  answer  by  the  complainant 
was  sustained.^  The  complaint  must  state  specifically 
the  grounds  on  which  a  judgment  for  deficiency  is  de- 
manded against  a  married  woman  ;  otherwise  a  personal 
judgment  taken  upon  default  will  be  held  void.^   A  bond 

1  See  §  43,  ante. 

-  62  N.  Y.  69  (1875),  reversiiio-  2  Hun,  143  ;  4  T.  &  C.  678 ; 
McKeon  v.  Hatraii,  18  Hun  (N"  Y.),  65  (1879) ;  Williamson  v. 
Duffy,  19  id.  312  (1879);  Manhattan  Life  Ins.  Co.  v.  Glover,  14 
id.  153  (1878).  In  Rourk  v.  Murphy,  12  Abb.  N.  C.  (N.  Y.)  402 
(1883),  she  bound  her  separate  estate  expressly. 

3  Jones  V.  Merritt,  23  Hun  (N.  Y.),  184  (1880). 

4  Williamson  v.  Duffy,  19  Hun  (N.  Y.),  312  (1879). 

•'  Manhattan  Life  Ins.  Co.  v.  Glover,  14  Hun  (N.  Y.)-,  153  (1878). 


214  PARTIES    TO    MORTGAGE    FORECLOSURES. 

and  mortgage  executed  by  a  married  woman  to  secure 
part  of  the  purchase-money  for  premises  conveyed  to 
her,  will  render  her  liable  for  a  judgment  of  deficiency  in 
an  action  to  foreclose,  on  the  theory  that  the  trans- 
action was  for  the  benefit  of  her  separate  estate.^  In 
an  action  to  foreclose  a  purchase- money  mortgage.  Park, 
J.,  said,  "  I  do  not  understand  how  it  can  be  said  that 
a  debt,  contracted  on  the  purchase  of  property  which 
the  purchaser  takes  into  possession  and  enjoys,  is  not 
a  debt  contracted  for  the  benefit  of  the  purchaser's 
estate."'^ 

§  98.  Persons  originally  liable,   deceased,   their  estates 
liable — personal  representatives  proper  parties. 

Where  a  mortgagor  or  other  person  who  was  person- 
ally liable  for  a  deficiency  on  the  foreclosure  of  a  mortgage 
is  dead,  his  personal  representatives  may  be  made  parties 
to  an  action  to  foreclose  the  mortgage,  and  a  decree  may 
be  rendered  therein  that  the  deficiency  be  paid  out  of 
the  estate  in  their  hands  in  the  due  course  of  its  ad- 
ministration.^    This  proposition  was  first  advanced  by 

1  Ballin  V.  Dillaye,  37  N.  Y.  35  (1867) ;  S.  C,  35  How.  (N.  Y.) 
216 ;  Flirm  v.  Powers,  36  N.  Y.  289  (1868) ;  Vrooman  v.  Turner, 
8  Hun  (N.  Y.),  78  (1876) ;  -reversed  in  part,  69  N.  Y.  280  ;  Brun- 
ner's  Appeal,  47  Perm.  67  (1864) ;  Snyder  v.  Noble,  94  id.  286 
(1880) ;  Chase  v.  Hubbard,  99  id.  226  (1881). 

2  Ballin  v.  Dillaye,  supra,  citing  Ames  v.  Foster,  3  Allen 
(Mass.),  541  (1862) ;  Stewart  v.  Jenkins,  6  id.  300  (1863) ;  Basford 
V.  Pearson,  7  id.  505  (1863);  Rogers  v.  Ward,  8  id.  387^(1864). 
But  in  Pemberton  v.  Johnson,  64  Mo.  Rep.  342  (1870),  she  was 
held  not  personally  liable. 

3  Glacius  V.  Fogel,  88  N.  Y.  439  (1882) ;  Scofield  v.  Doscher,  10 
Hun  (N.Y.),  582(1877);  aff'd72N.  Y.491;  Fliess v.  Buckley,  90  N. 
Y.  286  (1882);  Lockwood  v.  Fawcett,  17  Hun  (N.  Y.),  147(1879). 
For  the  practice  in  South  Carolina,  see  Gray  v.  Toomer,  5  Rich. 
Law  (S.  C),  261  (1852).  In  Drayton  v.  Marshall,  Rice's  Eq.  (S.  C.) 
373  (1839),  personal  representatives  were  held  proper  parties ; 


decedent's  estate  liable  for  deficiency.      215 

Chancellor  Walworth  in  Leonard  v.  Morris,  and  has  never 
been  seriously  questioned.  He  held,  "  Where  the  person 
who  is  thus  secondarily  liable  for  such  deficiency  is  dead, 
I  can  at  present  see  no  legal  objection  to  making  his 
personal  representatives  parties  to  the  suit  for  the  pur- 
pose of  obtaining  a  decree  against  them  for  the  payment 
of  such  deficiency  out  of  the  estate  of  the  decedent  in 
their  hands,  to  be  paid  in  a  due  course  of  adminis- 
tration. *  *  ^  No  decree  can  be  made  for  the 
payment  of  the  deficiency  out  of  the  estate  of  the 
decedent,  so  as  to  entitle  the  complainant  to  an  execution 
thereof  in  this  court,  until  a  full  account  of  the  adminis- 
tration of  the  estate  has  been  taken ;  except  in  those 
cases  where  the  executors  and  administrators  admit 
assets  sufficient  to  pay  the  complainant's  debt,  and  all 
other  debts  of  an  equal  and  of  a  higher  class  which 
were  due  by  the  decedent."  ^  Judge  Miller  of  the  New 
York  Cdurt  of  Appeals  cited  this  case  with  approval  in 

aud  it  was  further  held  that  the  balance  of  a  mortgage  debt  was 
entitled  to  priority  of  payment  out  of  the  general  estate  over 
simple  contract  debts.  See  Edwards  v.  Sanders,  6  Rich.  (S.  C.) 
316  (1874).  See  Rodman  v.  Rodman,  64  Ind.  65  (1878),  support- 
ing the  text  and  holding  that  there  can  be  no  decree  over  for  a 
deficiency  unless  the  personal  representatives  are  made  parties. 
See  the  earlier  case  of  Newkirk  v.  Burson,  21  id.  129  (1863),  to 
the  contrary.  In  Prieto  v.  Duncan,  22  111.  26  (1859),  a  decree 
for  deficiency  was  taken  against  the  estate  of  a  deceased  mort- 
gagor, none  of  his  personal  representatives  having  been  made 
parties ;  on  appeal  it  was  held  error,  and  the  court  followed  the 
New  York  rule  in  Leonard  v.  Morris,  9  Paige  (N.  Y.),  90  (1841). 
In  Bennett  v.  Spillars,  7  Texas,  600  (1852),  the  New  York  rule 
was  established  for  Texas,  though  no  authorities  are  cited  iu  the 
opinion  per  Hemphill,  Ch.  J.  Contra  to  the  text  is  Pechand  v. 
Rinquet,  21  Cal.  76  (1862),  and  Fallon  v.  Butler,  21  id.  24  (1862), 
holding  that  a  judgment  for  deficiency  cannot  be  rendered 
against  personal  representatives,  but  that  the  actual  deficiency 
can  be  presented  to  them  for  payment  in  the  due  course  of 
administration. 

1  Leonard  v.  Morris,  9  Paige  (N.  Y.),  90,  92  (1841). 


216  PARTIES    TO    MORTGAGE    FORECLOSURES. 

1882,  saying, "  If  the  mortgaged  premises  were  inadequate 
and  the  security  thus  failed,  the  debt  was  still  existing 
for  what  was  unpaid,  and  the  remedy  was  perfect  against 
the  mortgagor,  under  the  statute  which  was  evidently 
designed  for  the  purpose  of  avoiding  the  necessity  of 
two    separate   actions.      If  the    mortgagor   was   alive, 
the  judgment  would  have  been  against  him  personally, 
and  upon  his  decease  his  estate  would  have  been  liable 
to  pay  the  same,  and  his  executors  or  administrators 
could  have  been  compelled  to  apply  funds  in  their  hands 
in  liquidation  of  the  judgment.     That  the  action  was 
brought  after  the  mortgagor's  death,  and  against  the 
executors,  can  make  no  difference,  and  does  not  relieve 
them  from  the  liability  which  the  testator  had  incurred, 
and  which  they  would  be  obliged  to  meet, had  the  judg- 
ment preceded  his  death.     The  foreclosure  of  the  mort- 
gage was  in  fact  against  the  executors,  who  were  standing 
in  the  place  of  the  mortgagor,  and  the  judgment  was 
against  his  representatives,  who  were  liable  to  satisfy  the 
same  out  of  any  assets  of  the  mortgagor  in  their  hands. 
It  is  very  clear  upon  principle  that  the  representatives  are 
liable  to  pay  the  debt  of  a  deceased  party  in  any  event. 
But  if  any  doubt  can  properly  arise,  it  is  settled  by  the 
statute  which  authorizes  actions  to  be  maintained  by 
and  against  executors  in  all  cases  in  which  the  same 
might  have  been  maintained  by  or  against  their  respect- 
ive  testators.     The  case  of  Leonard   v.   Morris  holds 
distinctly    that   when    the    mortgagor   or   other   party 
personally  liable  for  the  deficiency  in  a  foreclosure  case 
is  dead,  his  personal  representatives  may  be  parties  to 
the  suit,  to  enable  the  complainant  to  obtain  a  decree 
that  the  deficiency  be  paid  out  of  the  estate  in  their 


PERSONAL    REPRESENTATIVES    MADE    PARTIES.  217 

hands  in  a  due  course  of  administration.  The  rule  stated 
is  well  settled,  and  if  any  different  one  was  adopted,  the 
execution  of  a  bond  would  be  an  idle  ceremony  in  case 
of  the  maker's  death."  ^ 

In  an  action  to  foreclose,  where  judgment  was  de- 
manded against  the  survivor  of  two  obligors,  and 
further  that  on  the  return  of  an  execution  against 
him  unsatisfied  the  balance  be  adjudged  to  be  a  debt 
against  the  estate  of  the  deceased  obligor,  to  be  paid  by 
his  administrator  in  the  due  course  of  administration, 
the  court  held  that  a  decree  could  not  be  made  against 
the  estate  of  the  decedent  in  the  same  action.^     But  it 

1  Glacius  V.  Fogel,  88  N'.  Y.  439  (1882). 

2  Vice-Chancellor  Whittlksey,  in  writing  the  opinion  in 
Rhodes  v.  Evans,  Clarke  Ch.  (N.  Y.)  170  (1840),  says :  "  These 
provisions  would  authorize  a  personal  decree  against  Evans,  and 
against  Rochester  if  he  was  living,  for  any  such  balance  ;  but  wdll 
it  authorize  such  decree  against  Rochester's  administrator,  he  be- 
ing dead  ?  iSuch  decree  is  authorized  only  when  such  balance  is  re- 
coverable at  km.  This  bill  is  filed  against  Evans  and  the  adminis- 
trator, widow  and  heirs  of  Rochester.  For  the  purpose  of  obtain- 
ing a  sale  of  the  land,  all  these  are  rightly  made  parties  ;  but 
can  they  be  joined  for  the  purpose  of  a  personal  decree  against 
them  jointly  ?  This  question  is  answered  by  an  answer  to  the 
question  whether  they  could  be  jointly  sued  upon  the  bond  at 
law.  The  decisions  and  well  settled  principles  of  our  courts 
clearly  and  decidedly  answer  this  question  in  the  negative. 
Evans  and  the  administrator  of  Rochester  could  not  be  joined  as 
defendants  in  a  suit  at  law  upon  the  bond.  Evans  must  be 
sued  as  survivor.  Then  this  is  not  a  debt  which  is  recoverable 
at  law,  in  the  mode  which  the  complainant  has  sought  to  recover 
it  in  this  court ;  and,  consequently,  there  can  be  no  decree  against 
the  administrator  of  Rochester  in  this  court.  But  the  complain- 
ant asks  this  court  to  determine  the  amount  due  from  Rochester's 
estate  upon  this  demand,  after  the  premises  are  sold,  and  after 
an  execution  has  been  returned  unsatisfied  against  Evans.  It 
seems  to  me  that  this  is  a  matter  which  does  not  belong  to  the 
jurisdiction  of  this  court,  at  least  in  the  present  shape  of  the 
cause.  The  surrogate  has  jurisdiction  to  marshal  Rochester's 
assets,  and  direct  how  they  shall  be  paid.  Other  creditors  have 
an  interest  in   the   amount  of   this  debt,  and  in  settling    this 


218  PARTIES    TO    MORTGAGE    FORECLOSURES. 

is  doubtful  whether  this  is  good  law  under  the  more 
recent  decisions.^  If  the  plaintiff  fails  to  make  the 
representatives  of  a  deceased  person  who  was  liable  for 
the  mortgage  debt  parties  to  the  action  or  does  not 
demand  a  judgment  of  deficiency  against  them,  he  can 
present  his  claim  for  an  unpaid  balance  to  the  personal 
representatives,  and  if  payment  is  refused,  an  action 
can  be  maintained  against  them  to  recover  the  defi- 
ciency,— only,  however,  by  leave  of  the  court  in  which 
the  mortgage  was  foreclosed.^ 

§  99.  Persons  originally  liable,  deceased,  their  heirs  and 
devisees  not  proper  parties. 

As  has  been  seen  from  the  decisions  cited  in  the 
preceding  section,  the  personal  representatives  of  a  de- 
ceased obligor  are  proper  parties  to  an  action  to  fore- 
close a  mortgage,  for  the  purpose  of  determining  the 
amount  of  any  deficiency  that  may  arise,  and  of  estab- 
lishing a  claim  to  be   presented   and   paid  in  the  due 

amount,  and  they  are  not  before  the  court  to  contest  this  claim  ;  and 
1  doubt  whether  a  decision  of  this  court  would  be  binding  upon 
them  in  any  manner  whatever.  If  they  had  notice  of  this  pro- 
ceeding, they  might  possibly  contest  this  claim,  or  they  mi^ht 
see  that  the  mortgaged  premises  produced  enough  to  pay  the 
mortgage  debt,  so  as  to  relieve  the  personal  fund ;  but  they  are 
not  here,  and  I  cannot  make  a  decree  which  shall  bind  them  in 
any  manner."  This  case  is  cited  in  no  decision,  and  it  is  plainly 
overruled  in  substance  by  Leonard  v.  Morris,  supra;  Glacius  v. 
Fogel,  i^upra ;  Lockwood  v.  Fawcett,  supra. 

'  See  the  cases,  supra.  In  Trimmer  v.  Thomson,  10  Rich.  N.  S. 
(8.  C.)  164,  178  (1877),  an  exhaustive  opinion  was  wu-itten  by 
Haskell,  A.  J.,  who  held,  in  an  action  upon  a  joint  and  several 
bond,  where  one  of  the  obligors  had  died  and  the  verdict  was 
generally  for  money,  that  separate  judgments  could  be  rendered 
against  the  survivor  and  the  executors  of  the  deceased  obligor. 
See  Daniels  v.  Moses,  12  S.  C.  130  (1880). 

2  Scotield  V.  Doscher,  72  N.  Y.  491  (1877) ;  Glacius  v.  Fogel, 
88  id.  440  (1882).     See  §  85,  ante,  and  the  notes. 


HEIR    OF    PERSON    LIABLE,    NOT    PROPER    PARTY.       219 

course  of  the  administration  of  the  estate  of  the  dece- 
dent. Another  line  of  decisions  holds  distinctly  that  the 
heirs  of  a  deceased  person  who  was  liable  for  the  mort- 
gage debt  are  not  proper  parties  to  an  action  to  foreclose 
a  mortgage,  where  a  judgment  for  deficiency  is  sought 
against  his  estate.^  If  the  decedent  owned  the  equity 
of  redemption  and  was  at  the  time  liable  for  the  pay- 
ment of  the  mortgage  debt,  his  heirs  and  devisees  are, 
of  course,  necessary  parties  for  cutting  off  the  equity 
of  redemption  whicli  descended  to  them ;  but  a  judg- 
ment for  deficiency  can,  in  no  event,  be  demanded 
against  them  in  the  same  action.-  The  remedy  against 
the  heirs  and  devisees  must  be  exhausted  in  a  separate 
and  subsequent  action  to  charge  lands  which  have  de- 
scended to  them  with  the  payment  of  the  decedent's 
debts.'^  In  Leonard  v.  Morris,  quoted  in  the  preceding 
section,  this  proposition  was  pointedly  presented  to 
Chancellor  Walworth,  who  said :  "Admitting  that  it 
may  be  proper  to  make  the  personal  representatives  of 
a  deceased  mortgagor  or  guarantor  parties  to  a  bill  of 
foreclosure,  where  it  is  probable  there  may  be  a  de- 
ficiency, there  is  no  case  in  which  it  is  allowable  to 
make  heirs  or  devisees  who  have  no  interest  in  the 
mortgaged  premises  parties  to  a  bill  of  foreclosure, 
with  a  view  to  reach  the  estate  descended  or  devised 
to  them,  to  satisfy  an  anticipated  deficiency  upon  the 
sale  of  the  mortgaged  premises.  To  authorize  the 
filing  of  a  bill  against  heirs  or  devisees,  to  obtain  satis- 
faction of  a  debt  which  is  not  a  specific  lien  upon  the 

1  See  Alexander  v.  Fray,  9  Ind.  481  (1857). 

2  Cundiff  V.  Brokaw,  7  111.  App.  147  (1881). 

3  Merchants'  Ins.  Co.  v.  Hinman,  15  How.  (N.  Y.)  182  (1857). 
See  Sutherland  v.  Rose,  47  Barb.  (N.  Y.)  144  (1866). 


220  PARTIES    TO    MORTGAGE    FORECLOSURES. 

estate  descended  or  devised  to  them,  the  complainant 
must  show  by  his  bill  that  the  personal  estate  of  the 
decedent  was  not  sufficient  to  pay  the  debt,  or  that  the 
complainant  has  actually  exhausted  his  remedy  against 
the  personal  estate  and  the  personal  representatives 
and  next  of  kin,  etc.  And  it  is  impossible  to  do  this  as 
to  the  deficiency  in  a  mortgage  case  where,  at  the  time 
of  filing  the  bill  to  foreclose  the  mortgage,  it  cannot 
be  known  that  there  will  be  any  deficiency  whatever. 
In  proceedings  against  heirs  or  devisees,  the  statute 
also  requires  the  complainant  to  state  in  his  bill,  with 
convenient  certainty,  the  real  estate  descended  or  de- 
vised. Again,  the  Revised  Statutes  have  prohibited 
the  bringing  of  any  suit  against  heirs  or  devisees  of  any 
real  estate,  in  order  to  charge  them  with  a  debt  of  the 
testator  or  intestate,  within  three  years  from  the  time 
of  granting  letters  testamentary  or  of  administration 
upon  his  estate,  ^  ^  ^  The  guardian  ad  litem  of 
the  infant  defendant,  therefore,  instead  of  putting  in 
a  general  answer,  and  consenting  to  a  decree  against 
such  infant,  should  have  raised  objection,  either  in  his 
answer  or  by  demurrer,  that  the  bill  was  improperly 
filed  against  the  heirs  and  devisees.  The  bill  must  be 
dismissed  as  to  the  heirs  and  devisees  of  the  obligor, 
but  without  prejudice  to  the  complainant's  right  to 
proceed  against  them  by  a  new  suit  to  charge  them 
with  the  payment  of  any  deficienc}^  which  may  exist 
after  the  sale  of  the  mortgaged  premises,  and  which 
cannot  be  collected  from  the  estate  of  the  mortgagor, 
nor  from  the  personal  estate  of  the  obligor,  after  due 
proceedings  had  before  the  surrogate."^ 

1  9  Paige   (N.  Y.),  90,  92  (1841);   Fliess  v.  Buckley,  22   Htm 


ASSIGNEE    OF    PERSON    LIABLE,    PROPER    PARTY.  221 

§  100.  A  person  originally  liable,  making  an  assignment 
in  bankruptcy  or  voluntarily,  assignee  proper. 

It  is  advanced  here  as  an  original  proposition  that 
an  assignee  in  bankruptcy,  or  by  general  assignment 
of  a  person  who  was,  at  the  time  of  the  assignment, 
liable  for  the  mortgage  debt,  is  a  proper  party  to  an 
action  to  foreclose  a  mortgage,  and  one  against  whom  a 
judgment  for  deficiency  can  be  demanded  and  decreed, 
to  be  paid  in  the  due  course  of  his  administration  upon 
the  estate  of  the  bankrupt.  This  proposition  has  been 
presented  to  no  court,  as  far  as  can  be  ascertained,  but 
it  is  believed  that  it  would  be  sustained,  as  the  cases 
cited  in  the  two  preceding  sections  strongly  support  it 
by  analogy.  An  assignee  is  only  a  representative  of 
the  bankrupt,  and  a  creature  of  the  law,  the  same  as  a 
personal  representative  of  a  decedent.  The  distinction 
should  be  made,  however,  that  the  demand  against  an 
assignee  must  be  made  before  the  final  settlement  of 
his  accounts  and  his  discharge,  for  after  his  trust  is 
performed  his  relations  to  and  duties  with  the  property 
of  the  bankrupt  are  completely  ended. 

(N.  Y.),  551  (1880).  In  Fliess  v.  Buckley,  24  Hun  (N.  Y.),  515 
(1881),  aff'd  90  N.  Y.  2.s6  (1882),  Dykman,  J.,  said:  "The 
plaintiffs  must  first  resort  to  the  decedent's  personal  estate ; 
that  failing,  they  have  their  remedy  against  the  heirs  and  dev- 
isees." 


CHAPTER  II. 


PARTIES    SUBSEQUENTLY    LIABLE. 


§  101.     Introductory. 

102.  Purchaser  of  a  mortgagor,  conveyance  made  subject  to 

the  mortgage,  not  liable. 

103.  Purchaser  of  a  mortgagor,  assuming  payment  of  the 

mortgage,  liable  — general  principles. 

104.  Theories  of  law  upon  which  a  mortgagee  is  allowed 

the  benefit  of  the  contract  of  assumption. 

105.  Purchaser  not  personally  liable   when  his  grantor  is 

not  personally  liable,  though  he  assumes  payment 
of  the  mortgage. 

106.  The  assumption  of  a  mortgage  by  a  subsequent  mort- 

gagee does  not  make  him  personally  liable  to  the 
prior  mortgagee. 

107.  Can  a  grantor  release  his  purchaser,  assuming  a  mort- 

gage, from  his  liability  to  the  mortgagee  ? 

108.  Intermediate  purchasers,  having  assumed  payment  of 

the  mortgage,  liable. 

109.  Assignor  of  a  mortgage,  guaranteeing  payment  or  col- 

lection, liable. 

110.  Intermediate  assignors  of  a  mortgage,   guaranteeing 

payment,  liable. 

111.  Assignor  of  a  mortgage,  covenanting  as  to  title  and 

against  defenses,  liable. 

112.  All  persons  guaranteeing  payment  or  collection  of  a 

bond  and  mortgage  by  a  separate  instrument,  liable. 

113.  Married  women,  obligating  themselves  in  any  of  the 

preceding  ways,  generally  liable. 

114.  Persons  subsequently  liable  in  any  of  the  preceding 

ways,  deceased,  their  estates  liable  —  personal  rep- 
resentatives proper  parties ;  heirs  and  devisees  not 
proper  parties. 


HOW    LIABILITY    FOR    MORTGAGE    DEBT    IS    CREATED.      223 

§  101.  Introductory. 

Subsequent  to  the  execution  of  a  bond  and  mortgage, 
and  consequent  upon  the  establishment  of  the  relation  of 
mortgagor  and  mortgagee,  with  their  respective  benefits 
and  liabilities,  the  title  of  the  mortgagor  to  his  lands, 
and  of  the  mortgagee  to  his  bond  and  mortgage,  may 
be  so  transferred  as  to  change  their  respective  relations ; 
and  to  bring  persons  who  were  strangers  to  the  execu- 
tion of  the  mortgage  into  such  a  relation  to  it,  or  to  the 
equity  of  redemption,  as  to  make  them  liable  for  the 
mortgage  debt.  In  this  chapter  consideration  will  be 
given  to  such  parties  as  were  strangers  to  the  original 
transaction  between  the  mortgagee  and  the  mortgagor, 
but  who  have  subsequently  become  liable  for  the  pay- 
ment of  the  indebtedness  secured.  The  subject-matter 
of  this  chapter  has  been  of  constantly  increasing  import- 
ance in  the  law,  owing  to  the  increased  number  of  con- 
veyances in  the  Eastern  states,  and  to  the  facility  with 
which  mortsrao-es  and  feal  estate  titles  are  now  trans- 
ferred.  The  whole  general  subject  is  intimately  con- 
nected with  the  law  of  Principal  and  Surety  ;  but  it  is 
without  the  province  of  this  work  to  give  any  attention 
to  that  branch  of  the  law,  except  indirectly,  and  refer- 
ence must  be  had  to  special  treatises  on  that  subject. 

There  are  two  principal  ways  in  which  this  subse- 
quent liability  for  a  mortgage  debt  may  be  created. 
The  mortgagor  may  create  it  by  conveying  his  equity  of 
redemption  in  the  mortgaged  premises,  and  binding  his 
grantee  to  assume  the  payment  of  the  mortgage ;  or  the 
mortgagee  may  create  it  in  an  assignment  by  guaranteeing 
the  payment  or  collection  of  the  mortgage,  or  by  making 
other  covenants  in  respect  to  it.     Questions   affecting 


224  PARTIES    TO    MORTGAGE    FORECLOSURES. 

the  contract  of  assumption  of  the  payment  of  a  mort- 
gage have  grown  into  such  importance  from  their  fre- 
quency and  variety,  that  they  might  well  be  made  the 
subject  of  a  legal  monograph ;  but  for  the  purposes  of 
this  work,  only  the  general  and  well  established  princi- 
ples of  law  affecting  the  subject  need  be  stated.  In  the 
foot  notes,  however,  a  full  list  of  cases,  with  catch  words, 
will  be  given;  and  reference  is  had  to  the  excellent 
work  of  Leonard  A.  Jones, ^  who  treats  this  subject  in 
thirty-two  octavo  pages.  The  decisions  in  New  York, 
however,  are  fully  given  in  the  following  pages. 

§  102.  Purchaser  of  a  mortgagor,  conveyance  made  sub- 
ject to  the  mortgage,  not  liable. 

It  is  now  well  settled  in  all  courts,  v.here  a  mort- 
gagor conveys  his  equity  of  redemption  to  a  purchaser 
without  mentioning  the  mortgage  in  the  instrument  of 
conveyance,  or  by  stating  therein  that  the  deed  is 
made  subject'-  to  the  mortgage*,  or  by  merely  reciting 
the  mortgage,  that  the  grantee  is  not  thereby  made 
liable  for  the  mortgage  debt ;  and  a  judgment  for 
deficiency    cannot    be    demanded    against    him  in  an 

1  Jones  on  the  Law  of  Morts:ages,  §§  748,  770. 

2  Binsse  v.  Paige,  1  Keyes  (N.  Y.),  87  (1863) ;  Stebbins  v.  Hall, 
29  Barb.  (N.  Y.)  524  (1859),  collating  and  reviewing  the  cases: 
Collins  V.  Rowe,  1  Abb.  N.  C.  (N.  Y.)  97  (1876),  and  the  note  to 
the  case,  in  which  are  collated  and  analyzed  the  cases  interpreting 
and  fixing  the  meaning  of  the  language  employed  in  various 
deeds  to  express  and  to  refer  to  the  existence  of  a  mort- 
gage on  the  premises.  See  Carter  v.  Holahan,  92  N.  Y.  498 
(1883);  Wadsworth  v.  Lyon,  93  id.  201  (1883);  Post  v.  Trades- 
men's Bank,  28  Conn.  430,  432  (1859) ;  Rapp  v.  Stoner,  104  111. 
618  (1882);  Lewis  v.  Day,  53  Iowa,  575,  579  (1880),  collating  and 
reviewing  the  cases;  Slater  v.  Breese,  36  Mich.  77  (1877);  Stro- 
haner  v.  Voltz,  42  id.  444  (1881);  Camfield  v.  Shear,  49  id.  313 
(1882) ;  Woodbury  v.  Swan,  58  N.  H.  380  (1883) ;  Moore's  Es- 


PURCHASER  SUBJECT  TO  MORTGAGE  NOT  LIABLE.  225 

action  to  foreclose  the  mortgage.^  A  grantee  who 
takes  "  subject  "  to  a  mortgage  simply  contracts  that 
the  debt  shall  be  paid  out  of  the  mortgaged  land.^  The 
clause  "under  and  subject"  is  binding  between  the 
parties  as  a  covenant  of  indemnity,  but  it  gives  the  mort- 
gagee no  rights  against  the  purchaser.  A  purchaser  at 
a  judicial  sale,  which  is  made  subject  to  a  mortgage,^  does 
not  become  personally  obligated  for  the  mortgage  debt.* 
There  is  no  implied  promise  or  covenant  of  a  personal 
obligation ;  the  premises  are  a  primary  fund  for  the 
payment  of  the  debt ;  but  beyond  their  value,  the  pur- 
chaser is  in  no  way  liable.  Even  where  the  deed 
recited  that  the  mortgage  had  been  estimated  as  a  part 
of  the  consideration  money,  and  had  been  deducted 
therefrom,  it  has  been  decided  that  the  grantee  assumed 
no    personal   liability    for   its   payment.  ^     Where   the 

tate,  12  Phila.  (Pa.)  104  (1882);  Ins.  Co.  v.  Addicks,  lb.  490; 
Girard  Trust  Co.  v.  Stewart,  S6  Penii.  89  (1878) ;  Moore's  Appeal, 
88  id.  450  (1879);  Samuel  v.  Peyton,  88  id.  465;  Merriraan  v. 
Moore,  90  id.  78  (1879);  Cleveland  v.  Southard,  25  Wis.  479 
(1870) ;  Weber  v.  Zeiment,  30  id.  283  (1872) ;  Tanguay  v.  Felt- 
housen,  45  id.  30  (1878). 

1  Belmont  v.  Coman,  22  N.  Y.  438  (1860),  a  leading  case  ;  Mc- 
Lenahan  v.  McLenalian.  3  C.  E.  Green  (18  N.  J.  Eq.),  101  (1866), 
collating  the  English  authorities  ;  Carleton  v.  Byington,  24  Iowa, 
173  (1867);  Hull  v.  Alexander,  26  id.  569,  572  (1869).  See 
Jones,  §§  735-740,  for  a  fuller  discussion  of  the  sulDJect  of  this 
section. 

2  Ludington  v.  Harris,  21  Wis.  239  (1866). 

3  Taylor  v.  Mayer,  93  Penn.  42  (1880). 

*  Wagner  v.  Chew,  15  Penn.  St.  323  (1850);  Lening's  Estate, 
52  Penn.  135  (1866);  Price  v.  Cole,  35  Texas,  461  (1871).  In 
Porter  v.  Parmley,  52  N.  Y.  185  (1873),  no  mention  was  made  of 
a  mortgage. 

5  Belmont  v.  Coman,  22  N.  Y.  438  (1860).  See  Dingeldein  v. 
Third  Ave.  R.  R.  Co.,  37  id.  575  (1868),  distinguishing  Belmont 
V.  Coman.  In  point,  Fiske  v.  Tolman,  124  Mass.  254  (1879), 
where  the  language  was,  "  subject  to  a  mortgage  *  *  *  which 
is  part  of  the  above-named  consideration." 

15 


226  PARTIES    TO    MORTGAGE    FORECLOSURES. 

language  was,  "  subject  *  '^  *  to  a  mortgage 
#  #  *  -^vhich  forms  the  consideration  money  of  this 
deed,"  the  grantee  was  held  not  liable.^  In  New  Jersey 
the  rule  is  quite  different,  and  the  courts  have  held  that 
equity  raises  upon  the  conscience  of  the  purchaser  an 
obligation  to  indemnify  the  mortgagor  against  the  mort- 
gage debt.-  Vice-Chancellor  Yan  Fleef'  very  clearly  dis- 
tinguishes the  rules  in  New  York  and  in  New  Jersey  in 
reviewing  Belmont  v.  Coman.  "  It  was  there  held," 
he  says,  "  that  where  lands  are  conveyed  subject  to  a 
mortgage,  and  the  amount  of  the  mortgage  is  deducted 
from  the  purchase-money  agreed  upon,  no  personal  lia- 
bility is  thereby  created  against  the  purchaser,  but  that 
the  true  exposition  of  the  intent  of  the  parties  under 
such  an  arrangement  is,  that  so  much  of  the  purchase- 
money  as  is  represented  by  the  mortgage  is  not  to  be 
paid  by  the  purchaser  to  anybody,  but  shall  be  paid  out 
of  the  land,  and  in  that  manner  only.  Such  interpre- 
tation would  undoubtedly  carry  into  effect  the  intention 
of  the  parties  where  the  interest  sold  is  merely  the 
equity  of  redemption,  and  the  purchase-money  agreed 
upon  represents  simply  the  value  of  the  mortgagor's 
interest  in  the  mortgaged  premises  over  the  mortgage 
debt ;  but  where  the  purchase-money  agreed  upon  rep- 
resents the  whole  value  of  the  premises  free  from  the 
mortgage,  and  one  of  the  mortgagor's  objects  in  selling 
is  to  relieve  himself  from  the  mortgage  debt,  the  vendor 
would  seem,  according  to  the  plain  meaning  of  the  ar- 

1  Trotter  v.  Hughes,  12  N.  Y.  74.  78  (1854). 

2  Tichenor  v.  Dodd,  3  Green  Ch.  (N.  J.)  454, 455  (1844);  Twich- 
ell  V.  Mears,  8  Biss.  C.  Ct.  (U.  S.)  214  (1882). 

3  Held  V.  Vreeland,  30  N.  J.  Eq.  591,  593  (1879);  Belmont  v. 
Coman,  22  N.  Y.  438  (1860). 


LIABILITY,  MORTGAGE  DEDUCTED  FROM  CONSIDERATION.    227 

rangement,  to  have  a  clear  right  to  the  whole  sum 
agreed  to  be  paid,  or,  if  part  is  kept  back  to  pay  the 
mortgage,  that  the  purchaser  shall  be  required  either  so 
to  apply  it,  or  to  indemnify  the  mortgagor  against  the 
mortgage  debt ;  such  I  understand  to  be  the  principle  es- 
tablished by  the  adjudications  of  this  state,  and  in  my 
view  there  can  be  no  doubt  it  is  founded  on  justice  and 
reason."  In  the  recent  case  of  Smith  v.  Truslow^  the 
court  cited  Belmont  v.  Coman  with  approval,  but  seemed  to 
limit  it  by  saying,  "  It  would  be  otherwise,  and  the  con- 
tention of  the  appellant  should  prevail  if,  as  he  assumes, 
the  mortgage  debt  formed  part  of  the  consideration  of 
the  purchase  and  was  to  be  paid  by  the  purchasers,  or  if 
he  retained  its  amount."  This  would  seem  to  indicate 
that  the  New  York  courts  incline  toward  the  New  Jersey 
rule  as  more  equitable  and  just.  Much  depends  in 
each  case  upon  the  real  intention  of  the  parties.  If  it 
could  be  proven  that  it  was  the  intention  of  the  grantee 
to  assume  payment,  then  such  language  as  has  been 
given  above  would  be  construed  to  bind  him  person- 
ally.^ Again,  although  a  deed  may  expressly  bind  a 
purchaser  with  the  assumption  and  payment  of  prior 
mortgages,  he  would  not  be  holden  if  it  could  be  shown 
that  such  contract  of  assumption  was  inserted  without 
his  knowledge,  and  that  he  had  no  intention  of  binding 
himself  personally.^ 

1  84  N.  Y.  660,  661  (1881),  per  Danforth,  J.  But  see  Bennett 
V.  Bates,  94  id.  354  (1884),  per  Ruger,  Ch.  J.,  in  point. 

-  Andrews  v.  Wolcott,  16  Barb.  (N.  Y.)  21  (1852).  «ee  Jones, 
§  751. 

'*  Hraith  V.  Trnslow,  84  N.  Y.  660  (1881) ;  Kilmer  v.  Smith,  77 
id.  226  (1879).     See  the  next  section  and  notes. 


228  PARTIES    TO    MORTGAGE    FORECLOSURES. 

§  103.  Purchaser  of  a  mortgagor  assuming  payment  of  the 
mortgage,  liable  —  general  principles. 

If  the  purchaser  of  an  equity  of  redemption  assumes 
the  payment  of  an  existing  mortgage  on  the  premises, 
he  thereby  becomes  personally  liable  for  its  payment, 
and  may  be  made  a  defendant  for  the  purpose  of  obtain- 
ing a  judgment  for  deficiency  against  him.^    If  a  pur- 

1  Russell  V.  Pistor.  7  N.  Y.  171, 174(1852) ;  Trotter  v.  Hughes, 
12  id.  74  (1854) ;  Calvo  v.  Davies,  73  id.  212  (1878) ;  Druiy  v. 
Clark,  16  How.  (N.  Y.)  424  (1857) ;  Miller  v.  Watson,  1  Sweeney 
(N.  Y.),  874  (1869);  Wales  v.  Sherwood,  52  How.  (N.  Y.)  413 
(1876);  Mutual  Life  Ins.  Co.  v.  Davies,  44  Supr.  Ct.  (N.  Y.) 
172  (1878),  and  the  cases  cited.  See  Bache  v.  Doscher,  67  N.  Y. 
429  (1876) ;  Price  v.  Pollock,  47  Ind.  362  (1874) ;  Scorry  v.  El- 
drido-e,  63  id:'  44  (1878) ;  Thompson  v,  Bertram,  14  Iowa,  476 
(1863),  citing  Burr  v.  Beers,  24  N.  Y.  178  (1861),  and  relying 
upon  Corbett  v.  Waterman,  11  Iowa,  87  (1860),  and  Moses  v.  The 
Clerk,  12  id.  140  (1861);  Ross  v.  Kennison,  38  id.  396  (1874): 
Rogers  v.  Herron,  92  111.  583  (1879) ;  Rapp  v.  Stoner,  104  111. 
618(1882);  Shumaker  v  Sibert,  18  Kas.  104  (1877);  Miller  v. 
Thompson,  34  Mich.  10  (1876)  ;  Booth  v.  Conn.  Mut.  Life  Ins. 
Co.,  43  id.  299  (1880) ;  Unger  v.  Smith,  44  id.  22  (1881) ;  Follans- 
bee  V.  Johnson,  28  Minn.  311  (1882) ;  Vreeland  v.  Van  Blarcom, 
85  N.  J.  Eq.  530  (1882) ;  Brewer  v.  Maurer,  38  Ohio  St.  543 
(1883),  an  important  case  ;  Bishop  v.  Douglass,  25  Wis.  696  (1870). 
In  the  early  cases  of  Missouri  a  purchaser  assuming  payment 
was  held  not  liable  under  a  statute ;  Code  of  1855,  ch. 
113,  §  11 ;  Fithian  v.  Monks,  43  Mo.  Rep.  502,  515  (1869) ;  but 
under  a  later  statute  a  purchaser  has  been  held  liable ;  Heim  v. 
Vogel,  69  Mo.  Rep.  529  (1879).  The  liability  must,  however,  be 
enforced  in  an  action  apart  from  the  foreclosure  ;  Fitza^erald  v. 
Barker,  70  id.  685  (1879).  In  Hand  v.  Kennedy,  83  N.  Y.  149 
(1880).  W.  purchased  certain  premises  in  his  own  name,  but  in 
fact  for  himself,  K.  and  H.  jointly,  giving  a  purchase-money 
mortgage  signed  by  himself  alone  as  part  payment ;  subsequently 
W.  conveyed  to  K.  and  H.  undivided  interests  in  the  prop- 
erty, they  assuming  to  pay  specified  proportional  parts  of 
the  mortgage  ;  in  an  action  to  recover  a  judgment  for  deficiency, 
Earl,  J.,  held  K.  and  H.  liable  to  the  mortgagee,  and  that  there 
was  a  sufficient  consideration  to  sustain  their  contract  of  assump- 
tion.    See  Williams  v.  Gillier,  28  Hun  (N.  Y.),  175  (1882),  where 


PURCHASER    ASSUMING    PAYMENT    LIABLE.  229 

chaser  assumes  only  a  portion  of  the  mortgage  debt,  he 
will  be  obligated  for  the  payment  of  no  more  than  he 
assumes.^  And  where  the  conveyance  is  to  two  or  more 
tenants  in  common,  they  will  be  held  jointly  and  not 
severally  liable,  though  their  interests  in  the  property 
may  not  be  proportionally  the  same.'^  With  the  contract 
of  assumption  the  grantor  becomes  a  mere  surety  for  the 
debt.  It  is  queried  whether  he  can  require  the  mort- 
gagee to  foreclose  when  the  mortgage  becomes  due,  and 
whether  he  has  any  remedy  by  which  he  can  protect 
himself  except  that  of  paying  his  bond  and  mortgage,  and 
becoming  thereby  subrogated  to  the  rights  of  the  mort- 
gagee.^ The  bargain  to  assume  payment  being  made 
between  the  mortgagor  and  his  grantee,  the  mortgagee 
is  a  stranger  to  it ;  he  is  at  first  in  privity  with  neither 
of  the  parties  to  the  contract ;  yet  he  was,  at  an  early 
day,  held  to  be  entitled  to  seize  its  benefits  and  to  com- 
pel the  grantee  to  perform  his  covenant.  The  debt 
becomes  the  grantee's  own  debtjand-constitutes  a  portion 
of  the  consideration  for  the  conveyance ;  and  the  right 
to  enforce  the  obligation  is  not  changed  by  the  fact  that 
payment  is  to  be  made  to  the  mortgagee,  instead  of  to  the 
vendor  of  the  property.  The  theories  of  law,  on  which 
this  proposition  has  at  different  times  rested,  will  be 
mentioned  in  the  next  section. 


the  agreement  to  assume  a  part  was  oral,  and  the  court  exchided 
evidence  of  the  oral  agreement. 

^  >Snyder  v.  Robinson,  35  Ind.  311  (1871);  Logan  v.  Smith,  f',2 
Mo.  Rep.  455  (1876) ;  Harlem  Savings  Bk.  v.  Mickelsburgh,  57 
How.  (N.  Y.)  106  (1878).  See  Bowne  v.  Lynde,  91  N.  Y.  92 
(1883). 

^  Fenton  v.  Lord,  128  Mass.  466  (1880). 

^  Marshall  v.  Davies,  78  N.  Y.  415  (1879),  per  Rapallo,  J. ; 
Mills  V.  Watson,  1  Sweeney  (N.  Y.),  374  (1869). 


230  PARTIES    TO    MORTGAGE    FORECLOSURES. 

The  form  of  remedy  in  New  York,  New  Jersey^  and 
most  other  states,  is  that  the  grantee  is  Hable  upon  his 
covenant;  while  in  Connecticut,'  Massachusetts,^  and 
Rhode  Island,^  assumpsit  is  held  to  be  the  proper  remedy. 
In  an  action  by  the  grantor  against  the  grantee,  on  a  con- 
tract of  assumption,  the  measure  of  damages  is  the  un- 
paid amount  of  the  mortgage.^  As  between  the  mort- 
gagor and  his  grantee  who  assumes  payment,  the 
grantee  becomes  the  primary  debtor,  while  the  mort- 
gagor occupies  the  new  relation  of  a  surety  responsible 
to  the  mortgagee  alone.*'  The  land  stands  as  the 
primary  fund  out  of  which  the  debt  must  be  satisfied 
in  the  first  instance  ;  if  that  is  insufficient,  it  will 
rest  upon  the  purchaser  to  redeem  his  promise  made  to 
the  mortgagor  to  pay  the  obligation.  Both  the  pur- 
chaser and  the  mortgagor  are,  of  course,  proper  parties 

1  Klapworth  v.  Dressier,  2  Beas.  Ch.  (N.  J.)  62  (1860),  per 
Green,  Chancellor,  relying  upon  New  York  cases,  and  citing 
Green  v.  Crockett,  2  Dev.  and  Bat.  Eq.  Cas.  (N.  C.)  390  (1839). 
See  Stiger  v.  Mahone,  24  N.  J.  Eq.  426  (1874),  per  Runyon,  Chan- 
cellor ;  limited  in  Crowell  v.  Currier,  27  id.  152  (1876).  See 
Crowell  V.  Hospital,  27  id.  650  (1876).  The  above  cases  were 
superseded  in  part  by  chap.  255  of  the  laws  of  1880,  providing 
that  a  j  udgment  for  deficiency  cannot  be  recovered  in  an  action 
to  foreclose.  The  contract  of  assumption  remains  valid  to  the 
mortgagee,  but  it  can  be  enforced  only  in  a  separate  action  at 
law  ;  Naar  v.  E.  L.  Co.,  34  N.  J.  Eq.  Ill  (1881) ;  Allen  v.  Allen, 
lb.  493  (1882) ;  Newark  Savings  Inst.  v.  Forman,  33  id.  436 
(1881).     See  the  next  section  and  notes. 

2  Chapman  v.  Beardsley,  31  Conn.  116  (1862). 

3  Fenton  v.  Lord,  128  Mass.  466  (1881) ;  Lappen  v.  Gill,  129 
id.  349  (1881) ;  Williams  v.  Fowler,  132  id.  385  (1882) ;  See  Bra- 
man  v.  Dowse,  12  Cush.  (Mass.)  227  (1853) ;  Drury  v.  Tremont 
Imp.  Co.,  13  Allen  (Mass.),  168  (1866). 

4  Urquhart  v.  Brayton,  12  R.  I.  169  (1880). 

5  Furnas  v.  Drugin,  119  Mass.  500  (1876);  Locke  v.  Homer, 
131  id.  93  (1881) ;  Reed  v.  Paul,  131  id.  129. 

6  Drury  v.  Clark,  16  How.  (N.  Y.)  424  (1857) ;  Mills  v.  Watson, 
1  Sweeney  (N.  Y.),  374  (1869). 


GRANTOR    LIABLE    ONLY    AS    A    SURETY.  231 

to  the  action  to  foreclose,  as  both  are  liable  debtors 
to  the  plaintiff,  although  they  sustain  to  each  other  the 
relation  of  principal  and  surety.^  As  a  general  rule  the 
grantor  as  a  surety  will  be  discharged  from  his  liability 
by  any  variation  of  the  obligation  under  which  he  is 
holden,  according  to  the  principles  of  law  which  govern 
the  relation  of  principal  and  surety.  Thus,  a  change 
of  the  terms  of  a  bond  and  mortgage,  by  agreement 
between  the  grantee  assuming  payment  and  the  mort- 
gagee, made  without  the  knowledge  or  consent  of  the 
mortgagor,  canceling  a  stipulation  in  the  original  mort- 
gage providing  for  releases  of  part  of  the  mortgaged 
premises  when  required,  will  discharge  the  mortgagor 
of  all  liability  for  a  judgment  of  deficiency."^  "  That  an 
agreement  by  the  creditor  with  the  principal  debtor, 
extending  the  time  for  the  payment  of  the  debt,  with- 
out the  consent  of  the  surety,  discharges  the  latter,  is 
established  by  numerous  authorities."^ 

1  Fiagg  V.  Thurber,  14  Barb.  (N.  Y.)  196  (18.51) ;  modified  in 
9  N.  Y.  483  (1854) ;  Crawford  v.  Edwards,  33  Mich.  354  (1876)  ; 
Huyler  v.  Atwood,  26  N.  J.  Eq.  504  (1875);  Wadsworth  v. 
Lyon,  93  N.  Y.  201  (1883). 

-  Paine  v.  Jones,  76  N.  Y.  274  (1879),  aff'g  14  Hun,  577 
(1878),  relying  upon  Calvo  v.  Davies,  73  N.  Y.  211  (1878).  See 
Marshall  v.  Davies,  78  id.  414  (1879),  reversing  16  Hun,  606  (1879). 
But  in  Woodruff  v.  Stickle,  28  N.  J.  Eq.  549  (1877),  it  was 
stipulated  in  the  mortgage  that  the  mortgagee  should  release 
lands  at  the  mortgagor's  request  when  at  least  $300  per  acre  was 
paid :  the  fact  that  the  mortgagor's  grantee  released  at  a  less 
price,  was  held  not  to  discharge  or  relieve  the  mortgagor  from 
his  personal  liability  on  the  bond. 

3  Murray  v.  Marshall,  94  N.  Y.  611  (1884) ;  Spencer  v.  Spen- 
cer, 95  id.  353  (1884);  Calvo  v.  Davies,  73  id.  211,  216  (1878), 
aff'g  8  Hun,  222,  per  Andrews,  J. ;  Jester  v.  Sterling,  25  Hun  (N. 
Y.),  344  (1881).  See  Meyer  v.  Lathrop,  10  Hun  (N.  Y.),  m  (1877), 
to  the  contrary,  but  overruled  in  Paine  v.  Jones,  14  Hun  (N.  Y.), 
577,  580  (1878).  See  Penfield  v.  Goodrich,  10  Hun  (N.  Y.),  41 
(1877),  where  there  was  no  contract  of  assumption  and  the  mort- 


232  PARTIES    TO    MORTGAGE    FORECLOSURES. 

Specific  words  are  not  necessary  to  bind  the  pur- 
chaser, but  the  intent  to'  assume  the  mortgage  must  be 
clear  and  certain.  The  expression  "  subject  to  the 
payment "  of  a  mortgage  has  been  repeatedly  held  to 
bind  the  purchaser  ;^  so  also,  "  subject,  however,  to  the 
assumption  as  part  of  the  consideration  "  of  a  mort- 
gage, bound  the  grantee  personally.'^  And  the  expres- 
sion "  which  the  grantee  assumes  and  agrees  to  hold 
the  grantor  harmless  from,"  was  held  to  render  the 
grantee  liable  to  the  mortgagee."'  In  a  mortgage  where 
the  assumption  clause  read,  "  which  the  party  of  the 
first  part  hereby  agrees  to  pay,"  it  was  construed  to 
mean  the  party  of  the  second  part.*      An  agreement  to 

gagor  was  held  not  discharged  of  his  liability  on  the  bond  by  an 
extension  of  time  by  the  mortgagee  to  the  purchaser.  See  Cor- 
bett  V.  Waterman,  11  Iowa,  86 '(I860),  holding  the  mortgagor  not 
discharged  by  an  extension  of  time. 

1  Woodward's  Appeal,  88  Penn.  322  (1861) ;  Burke  v.  Gunney, 
49  id.  518  (1865) ;  Samuel  v.  Peyton,  88  id.  465  (1879) ;  Carley 
V.  Fox,  38  Mich.  387  (1878).  See  Davis  Appeal,  89  Penn.  272 
(1879),  which  seems  to  overrule  Burke  v.  Gunney,  supra,  on  this 
language.  See  Merriman  v.  Moore,  90  Peun.  78  (1881) ;  in  point, 
Dingeldein  v.  Third  Ave.  R.  R.  Co.,  37  N.  Y.  575,  578  (1868), 
per  Hunt,  Ch.  J.,  considering  the  question  at  length  ;  Collins  v. 
Rowe,  1  Abb.  N.  C.  (N.  Y.)  97(1876),  and  the  note,  exhaustively 
collating  the  cases  on  this  point  and  distinguishing  them.  See 
Bennett  v.  Bates,  94  N.  Y.  354  (1884). 

2  Douglass  V.  Cross,  56  How.  (N.  Y.)  330  (1878),  per  Van  Vorst, 
J.,  distinguishing  Collins  v.  Rowe,  1  Abb.  N.  C.  (N.  Y.)  \>7  (1876), 
where  the  language  was,  "  subject,  nevertheless,  to  the  payment  of 
one-eighth  of  a  certain  mortgage  now  on  the  premises,"  which  was 
held  not  to  bind  the  grantee.  And  in  Hoy  v.  Bramhall,  19  N. 
J.  Eq.  74,  78,  563,  568  (1868),  Chancellor  Zabriskie  says,  "  The 
clause  in  the  deed  '  subject  to  the  payment  of  all  liens  now  on 
said  premises '  cannot  be  construed  into  a  covenant  to  pay  the 
liens.  It  is  only  a  limitation  of  the  covenants  of  warranty  and 
against  incumbrances." 

3  Locke  V.  Homer,  131  Mass.  93  (1881) ;  Muhlig  v.  Fiske,  131 
id.  110  (1882). 

4  Fairchild  v.  Lynch,  42  Supr.  Ct.  (N.  Y.)  265  (1877). 


INTENTION    TO    ASSUME    PAYMENT    NECESSARY.  233 

assume  payment  of  the  interest  cannot  be  construed  so 
as  to  impose  a  liability  for  the  principal  sum.^  Even 
a  parol  promise  by  the  purchaser  to  assume  a  mortgage 
may  be  enforced,  as  the  contract  of  assumption  is  held 
to  exist  independent  of  and  apart  from  the  deed,  though 
nearly  always  engrossed  upon  it.'-^  It  is  not  necessary 
for  the  grantee  to  sign  the  deed  in  order  to  bind  him- 
self with  the  payment  of  the  mortgage  debt  which  he 
assumes  ;  his  acceptance  of  the  deed,  with  knowledge 
of  its  terms,  imposes  the  obligation  upon  him  as  effec- 
tually as  though  he  signed  it  f  if,  however,  there  is  no 
actual  acceptance  or  intention  to  assume  the  mortgage, 
the  grantee  will  not  be  holden  for  the  debt,  for  the  reason 
that  there  has  been  no  meeting  of  minds,  and  consequently 
no  contract.  Thus,  if  an  assumption  clause  is  inserted 
in  an  unusual  place  in   the  deed,  so  that  it  escapes  the 

1  Manhattan  Life  Ins.  Co.  v.  Crawford,  9  Abb.  N.  C.  (N.  Y.) 
365  (1879). 

2  Taintor  v.  Hemingway,  18  Hun  (N.  Y.),  458  (1879);  aff'd 
83  N.  Y.  610  (1880),  where  the  deed  was  made  subject  to  the 
mortgage,  and  an  oral  agreement  to  pay  it  was  held  to  be  valid. 
See  7  How.  (N.  Y.)  106  (1878).  In  point,  Ely  v.  McNight,  80  id. 
97  (1864),  where  the  question  of  parol  assumption  is  considered  at 
length.  Slauson  v.  Watkins,  44  Supr.  Ct.  (N.  Y.)  73  (1878).  In 
Pike  V.  Seiter,  15  Hun  (N.  Y.),  402  (1878),  a  husband  in  a  land  con- 
tract and  subsequently  orally  assumed  the  payment  of  a  mort- 
gage, but  he  caused  the  deed  to  be  made  in  his  wife's  name  ;  he 
instead  of  his  wife  was  held  personally  liable.  See  Merriman  v. 
Moore,  90  Penn.  78  (1881) ;  Bowen  v.  Kurtz,  37  Iowa,  239  (1873), 
pe")  Beck,  Ch.  J.;  Ream  v.  Jack,  44  id.  325  (1876) ;  Lamb  v. 
Tucker,  42  id.  118  (1875) ;  McDill  v.  Gunn,  43  Ind.  315  (1873); 
Miller  v.  Thompson,  34  Mich.  10  (1876) ;  Ketcham  v.  Brooks,  27 
N.  J.  Eq.  347  (1876) ;  Crowell  v.  Hospital,  27  id.  650  (1876).  See 
Wilson  V.  King,  27  id.  374  (1876),  where  the  proof  was  held  in- 
sufficient, and  the  case  failed  for  that  reason. 

3  Ricard  v.  Sanderson,  41  N.  Y.  179,  181  (1869) ;  Waler  v. 
Sherwood,  52  How.  (N.  Y.)  413  (1876),  and  the  cases  cited; 
Bowen  v.  Beck,  94  N.  Y.  86  (1884). 


234  PARTIES    TO    MORTGAGE    FORECLOSURES. 

notice  of  the  grantee,  and  he  had  no  intention  to  as- 
sume payment,  he  will  not  be  held  responsible  to  the 
mortgagee  ;^  so  also  if  the  scrivener  inserts  an  assump- 
tion clause  without  the  knowledge  of  either  party,  or 
if  it  be  fraudulently  inserted.-  In  a  case  where  a 
deed,  containing  an  assumption  clause,  was  executed 
merely  for  the  purpose  of  transferring  the  title,  the 
grantee  was  held  not  liable.^  But  as  against  a  bona 
fide  purchaser  of  a  mortgage  and  notes  before  maturity, 
who  relied  in  part  upon  the  contract  of  assumption,  such 
mistakes  and  frauds  could  not  be  pleaded  in  defense,  and 
the  grantee  would  be  held  personally  liable.^  It  is  not 
necessary  for  the  mortgagee  to  be  notified  of  the  con- 
veyance ;  the  purchaser  becomes,  at  once,  liable  to  him 
for  the  debt. 

It  is  necessary  that  the  conveyance  be  absolute  in 
its  terms,^  and  that  it  transfer  the  whole,  or  an  undi- 

'-  Bull  V.  Titsworth,  29  N.  J.  Eq.  73  (1878);  Culver  v.  Badger, 
29  id.  74  (1874);  Parker  v.  Jenks,  36  id.  398  (1883);  Kilmer  v. 
Smith,  77  N.  Y.  226(1879);  Deyermand  v.  Chamberlain,  88  id. 
658  (1882) ;  Trustees  of  Dispensary  of  N.  Y.  v.  Merriman,  59 
How.  (N.  Y.)  226  (1880).  In  Van  Horn  v.  Powers,  26  N.  J.  Eq. 
257  (1875),  a  husband  caused  a  deed  containinir  an  assumption 
clause  to  be  executed  to  his  wife  without  her  knowledge  ;  she  was 
held  not  personally  liable.  Precisely  the  same  facts  and  ruling 
appear  in  Mnnson  v.  Dyii:ett,  56  How.  (N.  Y.)  333  (1878).  See 
Albany  City  S.  Inst.  v.  Burdick,  87  N.  Y.  40  (1881).  In  Best  v. 
Brown,  25  Hun  (N.  Y.),  223  (1881),  the  grantee  refused  acceptance 
of  a  deed  containing  an  assumption  clause,  yet  the  grantor 
recorded  the  deed ;  the  grantee  was  held  not  personally  liable. 

2  Fuller  V.  Lamar,  53'  Iowa,  477  (1880).  See  Albany  City  S. 
Inst.  V.  Burdick,  87  N.  Y.  40  (1881),  reversing  20  Hun,  104, 
S.  C,  56  How.  (N.  Y.)  500  (1878),  as  to  the  amount  of  evidence 
of  fraud  that  is  necessary. 

3  Deyermand  v.  Chamberlain,  22  Hun  (N.  Y.),  110  (1881); 
aff'd  88  N.  Y.  658  (1882) ;  see  Best  v.  Brown,  25  Hun  (N.  Y.), 
223  (1881). 

4  Hayden  v.  Snow,  9  Biss.  C.  Ct.  (U.  S.)  511  (1882). 

5  G-arnsey  v.  Rogers,  47  N.  Y.  233  (1872) ;  see   Flagg  v.  Mun- 


FAILURE  OF  TITLE  A  DEFENSE  TO  ASSUMPTION  CLAUSE.    235 

vided  part  of  the  premises.  A  failure  of  title  is  held  to  be 
a  good  defense  for  a  purchaser,  who  assumed  the  payment 
of  a  mortgage,  against  his  personal  liability,  for  the  reason 
that  there  is  a  failure  of  the  consideration  upon  which 
the  contract  of  assumption  was  based.^  Judge  Miller, 
of  the  New  York  Court  of  Appeals,  limited  this  rule, 
in  1878,  by  saying :  "  It  is  held  that  where  a  grantee 
of  mortgaged  premises  takes  a  deed  of  the  same  sub- 
ject to  the  mortgage,  and  thereby  assumes  to  pay  the 
mortgage,  he  is  estopped  from  contesting  the  considera- 
tion and  validity  of  the  mortgage.  ^  ^  ^  "Pl-^e 
general  rule  is,  that  there  must  be  an  eviction  before  any 
relief  can  be  granted,  on  the  ground  of  a  failure  of 
title  or  consideration.  So  long  as  he  remains  in  the 
peaceful  and  quiet  possession  of  the  premises,  or  until 
he  surrenders  possession  of  the  same  to  a  paramount 
title,  the  mortgagor  or  the  purchaser  who  assumes  the  pay- 
ment of  the  mortgage,  has  no  defense  to  the  same."" 
After  the  contract  of  assumption  has  been  made   the 

ger,  9  N.  Y.  483-499  (1854),  where  there  was  an  acceptance  of 
the  deed  conditionally  at  first,  but  subsequently  made  absolute 
on  the  givin^^  by  the  vendor  of  a  conditional  bond ;  a  breach 
of  this  was  held  to  discharge  the  purchaser  from  any  personal 
liability  on  the  contract  of  assumption,  per  Denio  and  Ed- 
wards, J  J. 

1  Dunning  v.  Leavitt,  85  N.  Y.  30  (1881),  reversing  20  Hun, 
178 ;  Thorp  v.  Keokuk  Coal  Co,.  48  N.  Y.  253  (1872) ;  S.  C,  47 
Barb.  (N.  Y.)  439  (1866);  Garnsev  v.  Rogers,  47  N.  Y.  233 
(1872) ;  Curtiss  v.  Bush.  39  Barb.  (N.  Y.)  661  (1863).  In  point, 
Benedict  v.  Hunt,  32  Iowa,  27,  30  (1871) ;  Hile  v.  Davidson,  20 
N.  J.  Eq.  (5  C.  E.  Green)  228  (1869) ;  Hulfish  v.  O'Brien,  20  id. 
230  (1869) 

-  Parkinson  v.  Sherman,  74  N.  Y.  88,  92  (1878),  citing  Freeman 
V.  Auld,  44  id.  50  (1870) ;  Thorp  v.  Keokuk  Coal  Co.,  48  id.  253 
(1872) ;  Ritter  v.  Phillips,  53  id.  586  (1873) ;  Shadbolt  v.  Bassett, 
1  Lans.  (N.  Y.)  121  (1869).  On  the  question  of  eviction,  see  Dun- 
ning V.  Leavitt,  85  N.  Y.  30  (1881). 


236  PARTIES    TO    MORTGAGE    FORECLOSURES. 

grantee  cannot  plead  the  defense  of  usury  ;^  nor  can  he 
ordinarily  question  the  consideration  or  validity  of  the 
mortgage.^ 

§  104.  Theories  of  lavr  upon  -which  a  mortgagee  is  allo^wed 
the  benefit  of  the  contract  of  assumption. 

There  are  two  theories  of  law  upon  which  a  mort- 
gagee may  base  his  right  to  hold  a  purchaser,  who  has 
assumed  the  payment  of  his  mortgage,  personally  liable 
for  the  mortgage  debt ;  first,  the  theory  of  equitable 
subrogation,  by  which  a  creditor  is  entitled  to  all  the 
collateral  securities  which  his  debtor  has  obtained  to 
reenforce  the  primary  obligation  ;•'  and  second,  the  thaory 
that  if  one  person  makes  a  promise  to  another  for  the 
benefit  of  a  third  person,  th.it  third  person  may  main- 
tain an  action  on  the  promise.^  The  first  of  these  is  as 
old  as  English  law  itself,  and  was  the  earliest  of  the  two 
theories  to  be  applied  to  mortgage  foreclosures  when 
the  statute  was  passed  authorizing  the  recovery  of  a  per- 
sonal judgment  for  deficiency  in  an  action  to  foreclose 
a  mortgage.'^  The  doctrine  of  subrogation  is  still,  in 
many  states,  the  only  one  upon  which  the  mortgagee's 
right  to  hold  the  purchaser   responsible  for  the  debt 

1  Hartley  v.  Harrison,  24  N.  Y.  170  (1861). 

-  Freeman  V.  Auld,  44  N.Y.  50(1870);  see  Hartley  v.  Tatham, 
1  Robt.  (N.  Y.)  246  (1863),  on  estoppel. 

■''  Trotter  v.  Hughes,  12  N.  Y.  74,  79  (1854).     See  §^107,  post. 

^  Ross  V.  Keunison,  38  Iowa,  396  (1874) ;  Jones,  g§  758,  759, 
761.  For  an  exhaustive  collection  and  explanation  of  cases  in  all 
the  English  and  American  courts,  applying  this  principle,  see 
the  note  to  Cocker's  Case,  17  Eng".  Rep.  768  (1876),  Moak's  notes. 

•^  Curtis  V.  Tyler,  9  Paige  (N.  Y.),  432  (1842);  Dias  v.  Bou- 
chard, 10  id.  446  (1843) ;  Marsh  v.  Pike,  10  id.  495  (1844) ;  Trot- 
ter V.  Hughes,  12  N.  Y\  74  (1854) ;  Garnsey  v.  Rogers,  47  id.  233 
(1872). 


THEORIES    OF    LAW    FOR   RIGHTS    OF    MORTGAGEE.       237 

rests/  But  in  New  York  Judge  Denio  of  the  Court  of 
Appeals  about  1861'^  advanced  the  second  theory  in 
application  to  mortgage  foreclosures,  in  a  case  where 
the  doctrine  of  subrogation  would  not  sustain  the  con- 
clusions which  he  desired  to  reach.  This  second  theory 
has  grown  in  strong  favor  with  New  York  courts  where- 
ever  it  has  been  possible  to  apply  it;  and  there  are 
only  two  cases  (presented  in  the  next  two  sections)  in 
which  the  doctrine  of  the  right  of  a  third  party  to  en- 
force such  a  promise  made  for  his  benefit,  cannot  be 
applied  to  mortgage  foreclosures.^  In  Vrooman  v.  Tur- 
ner^ Judge  Allen  distinguished  and  harmonized  the  cases 
based  upon  these  two  theories,  and  showed  that  both 
were  still  in  force  and  applied  by  New  York  courts  to 
mortgage  cases.  The  second  theory,  however,  seems  to 
be  the  favorite. 

Under  the  theory  of  subrogation  a  mortgagee  could 
enforce  his  rights  against  a  purchaser  only  in  the  equi- 
table action  of  foreclosure  and  not  in  a  separate  action 
at  law  ;•''  but  with  the  adoption  of  the  second  theory,  it 
was  held  that  a  mortgagee  could  exercise  his  rights 
against  a  purchaser  in  an  action  at  law,  and  without 
foreclosure ;''  the  practice  of  enforcing  this  right  in  an 
action  at  law  is  not,  however,  encouraged  by  the  courts. 

J  See  Crowell  v.  Hospital,  27  N.  J.  Eq.  650,  657  (1876),  where 
the  question  is  fully  discussed. 

-  Burr  V.  Beers,  24  N.  Y.  178  (1861) ;  Lawrence  v.  Fox,  20  id. 
268  (1859).  The  courts  of  Iowa  have  adopted  the  second  theory; 
Ross  V.  Kennison,  38  Iowa,  396  (1874). 

3  Dunning  v.  Leavitt,  85  N.  Y.  39  (1881) ;  Pardee  v.  Treat ; 
82  id.  385  (1880);  Hand  v.  Kennedy,  83  id.  149,  154  (1880); 
Thorp  V.  Keokuk  Coal  Co.,  48  id.  253  (1872). 

*  69  N.  Y.  282  (1877). 

5  King  V.  Whitely,  10  Paige  (N.  Y.),  465  (1843) ;  Jones,  §  755 ; 
Thomas  on  Mortgages,  p.  191. 

"  Burr  V.  Beers,  24  N.  Y.  178  (1861) ;  Thorp  v.  Keokuk  Coal 


238  PARTIES    TO    MORTGAGE    FORECLOSURES. 

§  105.  Purchaser  not  personally  liable  when  his  grantor  is 
not  personally  liable,  though  he  assumes  payment 
of  the  mortgage. 

A  grantee  of  mortgaged  premises,  who  purchases 
subject  to  a  mortgage,  which  he  assumes  and  agrees  to 
pay,  will  not  be  held  liable  for  a  deficiency  arising  on 
a  foreclosure  and  sale,  unless  his  grantor  was  also 
personally  liable  legally  or  equitably  for  the  payment  of 
the  mortgage.^  "It  is  well  settled  that  to  make  a 
promise  of  this  nature  effective,  it  must  be  made  to  a 
person  personally  liable,  legally  or  equitably,  for  the 
mortgage  debt,  and  if  there  is  a  break  anywhere  in  the 
chain  of  liability,  all  the  subsequent  promises  are  with- 
out obligation."  -  This  proposition  has  been  three  times 
squarely  before  the  court  of  last  resort  in  the  state  of 
New  York,''  and  the  result  has  always  been  a  judgment 

Co.,  48  id.  253  (1872) ;  Mechanics'  Savings  Bank  v.  Goff,  13  R.  I. 
516  (1882).  In  point,  Fitzsrerald  v.  Barker,  70  Mo.  Rep.  685 
(1881) ;  Sparkman  v.  Gove,"44  N.  J.  L.  252  (1883) ;  the  grantor 
may  also  sue  the  purchaser,  Figart  v.  Halderman,  75  Ind.  564 
(1881).  See  also  Meech  v.  Ensign,  49  Conn.  191  (1883).  In  New 
Jersey,  since  the  passage  of  chap.  255.  laws  of  1880,  this  right 
can  be  exercised  onlv  in  an  action  at  law;  Naar  v.  E.  L.  Co., 
34  N.  J.  Eq.  Ill  (1882) ;  Allen  v.  Allen,  lb.  493  (1882). 

1  Vroonian  v.  Turner,  69  N.  Y.  280  (1877);  Thorp  v.  Keokuk 
Coal  Co.,  48  id.  253  (1872) ;  Cashman  v.  Henry,  75  id.  103  (1S78) ; 
S.  C,  55  How.  (N.  Y.)  234  ;  S:  C,  44  Supr.  Ct.  (N.  Y.)  93  (1878)  ; 
Dunning  v.  Leavitt,  85  N.  Y.  30  (1881);  Trotter  v.  Hughes,  12 
id.  74  (1854) ;  King  v.  Whitely,  10  Paige  (N.  Y.),  465  (1843) ; 
Munsou  V.  Dyett,  56  How.  (N.  Y.)  333  (1878).  In  point.  Brewer 
V.  Maurer,  38  Ohio  St.  543,  550  (1883),  citing  the  leading  cases 
in  New  Y'ork  and  other  states. 

-  Wise  V.  Fuller,  29  N.  J.  Eq.  257,  266  (1878),  in  which  the 
Chancellor  relies  upon  the  New  York  cases.  See  Crowell  v. 
Currier,  27  id.  1 52, 155  (1876) ;  reviewed  on  appeal,  lb.  650  (1876) ; 
Norwood  V.  De  Hart,  30  id.  412  (1879) ;  Arnaud  v.  Grigg,  29  id. 
482  (1878). 

3  King  V.  Whitely,  10  Paige  (N.  Y.),  465  (1843) ;  Trotter  v. 
Hughes,  12  N.  Y.  74  (1854) ;  Vrooman  v.  Turner,  69  id.  280  (1877). 


PURCHASER  NOT  LIABLE  IF  HIS  GRANTOR  NOT  LIABLE.    239 

of  affirmance.  The  rule  was  first  based,  by  Chancellor 
Walworth,^  in  1843,  upon  the  doctrine  of  subrogation. 
Judge  Denio  applied  the  same  doctrine  in  1854 ;  but 
in  1861  in  the  leading  case  of  Burr  v.  Beers-  he  preferred 
the  second  doctrine,  that  if  one  person  makes  a  promise 
to  another  for  the  benefit  of  a  third  person,  that  third 
person  may  maintain  an  action  on  the  promise.  In  1872^ 
and  in  1881*  he  sustained  and  a23plied  the  same  doctrine. 
But  Vrooman  v.  Turner^'  is  the  leading  case  upon  the 
proposition  of  this  section  and  harmonizes  the  two 
doctrines,  showing  that  the  proposition  can  be  based  on 
either,  and  stating  as  the  fundamental  reason  of  the  rule, 
that  there  is  no  consideration  to  support  the  contract  of 
assumption.  If  the  promise  of  the  grantee  to  the 
grantor  is  void  for  want  of  consideration,  a  third  party 
can,  of  course,  claim  no  advantage  from  it.  "To  give 
a  third  party  who  may  derive  a  benefit  from  the  per- 
formance of  the  promise,  an  action,  there  must  be  first, 
an  intent  by  the  promisee  (purchaser)  to  secure  some 
benefit  to  the  third  party,  and  second,  some  privity  be- 
tween the  two,  the  promisee  (purchaser)  and  the  party  to 
be  benefited,  and  some  obligation  or  duty  owing  from 
the  former  to  the  latter,  which  would  give  him  a  legal 
or  equitable  claim  to  the  benefit  of  the  promise,  or 
an  equivalent  from  him  personally."  ^ 

In  Pennsylvania  it  has  been  held  that  the  purchaser  is 
liable  upon  his  assumption  of  a  mortgage,  although  the 

1  King  V.  Whitely,  10  Paige  (N.  Y.),  465  (1843). 

2  24  N.  Y.  179  (1861). 

3  Thorp  V.  Keokuk  Coal  Co.,  48  N.  Y.  2.53  (1872). 
*  Dunning  v.  Leavitt,  85  N.  Y.  37  (1881). 

5  69  N.  Y.  283  (1877),  per  Allen,  J.,  reversing  8  Hun,  78. 
^  Vrooman  v.  Turner,  supra,  p.  283. 


240  PARTIES    TO    MORTGAGE    FORECLOSURES. 


agreement  to  assume  be  contained  in  a  deed  from  a 
grantor  who  was  under  no  personal  liability  to  pay  the 
mortgage;  and  contrary  to  the  New  York  cases  it  has 
been  held  that  the  agreement  could  not  be  said  to  be 
without  consideration  inasmuch  as  the  price  of  the 
land  was  a  consideration.^ 

§  106.  The  assumption  of  a  mortgage  by  a  subsequent 
mortgagee  does  not  make  him  personally  liable 
to  the  prior  mortgagee. 

A  stipulation  in  a  mortgage,  whereby  the  mortgagee 
assumes  and  agrees  to  pay  a  prior  mortgage  on  the 
premises,  does  not  impose  upon  him  such  a  personal 
liability  for  the  prior  mortgage  debt,  as  can  be  en- 
forced against  him  by  the  prior  mortgagee.^  The 
stipulation  in  such  cases  is  not  a  promise  made  by  the 
mortgagee  to  the  mortgagor  for  the  benefit  of  the  prior 
mortgagee,  but  is  a  promise  for  the  benefit  of  the  mort- 
gagor alone  ;  it  is  to  protect  his  property  by  advancing 
money  to  pay  his  debt.^  But  where  a  senior  mortgagee 
in  consideration  of  the  conveyance  to  him  of  the  equity 
of  redemption  assumes  the  payment  of  a  junior  mort- 
gage, he  is  personally  bound  to  pay  it  and  to  relieve  the 

1  Merriman  v.  Moore,  90  Pemi.  78,  81  (1879),  distinguishing 
Samuel  v.  Peyton,  88  id.  465  (1879),  which  is  seemingly  contrary 
to  the  text.     See  Jones,  §  760. 

2  Campbell  v.  Smith,  71  N.  Y.  26  (1877);  aff'd  8  Hun,  6 
(1876) ;  Pardee  v.  Treat,  82  N.  Y.  385  (1880),  reversing  8  Hun, 
298  ;  in  point.  Root  v.  Wright,  84  N.  Y.  72  (1881);  but  see  Bab- 
cock  V.  Jordan,  24  Ind.  14  (1865),  and  Racouillat  v.  San  Sevain, 
32  Cal.  376  (1867),  where  the  opposite  view  seems  to  be  held. 

3  In  point,  Arnaud  v.  Grigg,  29  N.  J.  Eq.  482,  486  (1878),  per 
Chancellor  Runyon,  distinguishing  Campbell  v.  Smith,  71  N. 
Y.  26  (1877),  and  relying  upon  Garnsey  v.  Rogers,  47  id.  233 
(1872),  saying  that  the  contract  of  assumption  is  not  for  the  bene- 
fit of  the  mortgagee. 


A  MORTGAGEE  ASSUMING  PRIOR  MORTGAGE  NOT  LIABLE.     241 

grantor  and  mortgagor  of  his  liability/  The  question 
presented  in  this  section  first  came  before  the  Court  of 
Appeals  of  New  York  in  1869  in  Ricard  v.  Sanderson^ 
when  the  reverse  of  the  above  proposition  was  sus- 
tained, and  a  person,  who  had  taken  a  deed  as  a  security 
merely  and  assumed  payment  of  the  prior  mortgage, 
was  held  personally  liable.  The  proposition  of  the  sec- 
tion was,  however,  pointedly  sustained  by  Judge  Rapallo, 
in  1872,  in  the  leading  case  of  Garnsey  v.  Rogers^'  where 
a  subsequent  mortgagee,  who  had  assumed  the  payment 
of  a  prior  mortgage,  was  held  not  liable  to  the  prior  mort- 
gagee, but  to  the  mortgagor  alone.  Judge  Rapallo  ex- 
plains this  conflict  of  opinion  by  the  fact  that  in  Garn- 
sey V.  Rogers  the  subsequent  mortgage,  containing  the  ^ 
stipulation,  was  canceled  and  the  mortgaged  premises 
were  restored  to  the  mortgagor,  the  stipulation  becom- 
ing, as  to  the  parties  to  it,  extinguished,  while  in  Ricard 
V.  Sanderson  it  does  not  appear  that  the  debt  for  which  the 
deed  was  given  as  a  security  had  been  extinguished  at 
the  time  of  the  foreclosure  or  that  the  premises  had  been 
reconveyed  in  pursuance  of  any  condition  or  defeasance 
on  which  the  deed  was  given.*  But  Judge  Andrews, 
who  has  written  a  majority  of  the  opinions  in  the  Court 
of  Appeals  concerning  questions  affecting  the  assumption 
of  a  mortgage,  pointedly  overruled  Ricard  v.  Sanderson, 
in  1881,  in  Pardee  v.  Treat^'  although  he  did  not  refer 

1  Huebsch  v.  Scheel,  81  111.  281  (1876). 

2  41  N.  Y.  179  (1869). 

3  47  N.  Y.  233  (1872). 

•*  See  Campbell  v.  Smith,  71  N.  Y.  26,  28  (1877),  aff' g  8  Hnn, 
6,  per  Church,  Ch.  J.,  distinguishing  Grarnsey  v.  Rogers  on  the 
questio.i  of  the  deeds  being  merely  a  creditor's  security. 

5  82  N.  Y.  885  (1880). 

16 


242  PARTIES    TO    MORTGAGE    FORECLOSURES. 

to  the  case  in  his  opinion,  but  reviewed  and  supported 
Garnsey  v.  Rogers.  He  says,  "  Tlie  distinguishing  ques- 
tion as  to  whether  a  person,  who  assumes  the  payment 
of  a  mortgage  in  a  subsequent  deed  or  mortgage,  is  per- 
sonally liable  to  a  prior  mortgagee,  is,  was  the  contract 
of  assumption  in  aid  of  the  grantor  alone ;  or  was  it 
also  for  the  benefit  of  the  mortgagee  ?  We  think  the 
true  result  of  the  decisions  upon  the  effect  of  an  as- 
sumption clause  in  a  deed  is,  that  it  can  only  be  enforced 
by  a  lienor,  where  in  equity  the  debt  of  the  grantor 
secured  by  the  lien  becomes,  by  the  agreement  between 
him  and  his  grantee,  who  assumes  the  payment,  the 
debt  of  the  latter.  On  the  other  hand,  if  the  assump- 
tion is  in  aid  of  the  grantor,  upon  the  security  of  the 
land,  and  not  as  between  them,  a  substitution  of  the  lia- 
bility of  the  grantee  for  that  of  the  grantor,  or  in  other 
words,  if,  in  equity  as  at  law,  the  grantor  remains  the 
principal  debtor,  then  the  assumption  clause  is  a  con- 
tract between  the  parties  to  the  deed  alone,  and  the  lia- 
bility of  the  grantee  for  any  breach  of  his  obligation,  is 
to  the  grantor  only."^ 

1  In  farther  reviewing  and  distinguishing  G-arusey  v.  Rogers, 
JuDUE  Andrews  says,  at  page  388,  "  In  that  case  the  covenant 
was  contained  in  a  deed  from  Hermance  to  the  defendant,  Rogers, 
absohite  in  form,  which  was  in  equity  a  mortgage,  the  deed  hav- 
ing been  given  to  secure  a  debt  owing  by  the  grantor  to  Rogers, 
upon  a  parol  defeasance,  that  upon  payment  of  the  debt  Rogers 
should  reconvey  the  premises.  The  plaintiff  was  the  owner  of 
mortgages  which  were  liens  on  the  premises  when  the  conveyance 
to  Rogers  was  made.  The  question  decided  in  King  v.  Whiteley, 
10  Paige  (N.  Y.),  465  (1848),  did  not  arise.  The  gi-antor  of 
Rogers  was  himself  liable  to  pay  the  mortgage,  and  if  Rogers 
had  stood  in  the  position  of  an  absolute  purchaser  of  the  land, 
his  liability  to  the  plaintiff,  either  in  an  equitable  or  legal  action, 
could  not,  upon  the  authorities,  have  been  questioned.  But  the 
court  held  that  the  deed  being  in  equity  a  mortgage,  the  cove- 


GRANTOR  CANNOT  RELEASE  GRANTEE  FROM  ASSUMPTION.  243 

§  107.  Can  a  grantor  release  his  purchaser,  assuming  a 
mortgage,  from  his  liability  to  the  mortgagee  ? 

It  is  now  settled  in  New  York,  that  where  a  grantee  in 
an  absolute  conveyance  of  lands  assumes  and  agrees  to 
pay  a  mortgage  thereon,  an  absolute  and  irrevocable  obli- 
gation is  created  in  favor  of  the  mortgagee,  which  cannot 
be  released  or  affected  by  any  act  or  agreement  of  the 
grantor  to  which  the  mortgagee  does  not  assent,^  The 
contrary  of  this  proposition  was  held  in  Stevens  v.  Cas- 
backer^-  in  the  Supreme  Court.  But  Justice  Bockes,  in  the 
later  case  of  Douglas  v.  Wells,^  squarely  overrules  Stevens  v. 
Cashacker,  and  after  an  exhaustive  review  of  all  the  cases 
upon  the  question,  concludes  with  an  affirmance  of  the 
proposition  of  this  section,  attaching  great  importance 
to  the  opinion  of  Rapallo,  J.,  in  Garnsey  v.  Rogers:^  "It 

nant  by  Rogers  to  pay  the  incumbrances  was,  in  legal  effect,  a 
covenant  to  make  advances  for  the  benefit  of  his  grantor  upon 
the  security  of  the  land.  The  promise  was  not,  therefore,  a  prom- 
ise made  for  the  benefit  of  the  plaintiff,  although  he  might  be 
benefited  by  its  performance.  It  was  not  a  case  for  equitable 
subrogation,  because  the  mortgage  debts  remained  the  debts  of 
the  grantor  who  continued,  in  equity  at  least,  the  owner  of  the 
land.  The  refusal  to  enforce  the  covenant  did  not  proceed  upon 
the  ground  of  want  of  consideration." 

1  Douglas  V.  Wells,  18  Hun  (N.  Y.),  88  (1879).  In  point,  Ran- 
ney  v.  McMullen,  5  Abb.  N.  C.  (N.  Y.)  246  (1878).  See  the 
opinion  of  the  referee  in  Ranney  v.  Peyser,  given  in  a  note  at 
page  259,  collating  and  reviewing  the  authorities.  In  Fairchilds 
V.  Lynch,  46  8upr.  Ct.  (N.  Y.)  1  (1880),  the  grantor  (mortgagor) 
by  mesne  assignments  became  the  owner  of  the  bond  and  mort- 
gage ;  on  the  doctrine  of  merger  this  was  held  to  release  the 
grantee  from  his  personal  covenant,  though  the  mortg'age  had 
been  assigned  to  a  third  person.  See  also  Talburt  v.  Berkshire, 
80  Ind.  484  (1881). 

2  8  Hun  (N.  Y.),  116  (1876).  See  Hartley  v.  Harrison,  24  N. 
Y.  170(1861). 

•'  57  How.  (N.  Y.)  878  (1879) ;  Devlin  v.  Murphy,  56  id.  326 
<1878) ;  Fleischauer  v.  Doellner,  58  id.  190  (1879) ;  Ranney  v. 
McMullen,  5  Abb.  N.  C.  (N.  Y.)  246  (1878). 

4  47  N.  Y.  242  (1872).     See  Judson  v.  Dada,  79  id.  379  (1880). 


244  PARTIES    TO    MORTGAGE    FORECLOSURES. 

must  be  considered  that  when  such  an  assumption  is 
made  on  an  absolute  conveyance  of  land,  it  is  unconditional 
and  irrevocable.  The  grantor  cannot  retract  his  con- 
veyance, nor  the  grantee  his  promise  nor  undertak- 
ing ;  but  where  contained  in  a  mortgage,  a  conveyance 
is  defeasible."  This  ruling  is,  of  course,  limited  to  those 
cases  where  the  grant  is  absolute  and  the  promise 
unconditional.  If  conditions  are  connected  with  the 
contract  of  assumption,  the  grantor  may,  sometimes, 
release  his  grantee.  Thus  where  an  oral  agreement 
was  made  contemporaneous  with  the  deed  and  contract 
of  assumption,  that  the  grantor  would  take  the  land 
back  at  any  time,  should  the  grantee  become  dissatisfied 
with  the  purchase,  and  release  the  grantee  from  his  cov- 
enant in  the  original  deed,  a  release  by  the  grantor  was 
held  to  discharge  the  grantee  from  all  liability  to  the 
mortgagee  for  a  judgment  of  deficiency.^  It  has  been 
intimated  that,  if  the  mortgagee  had  received  no  knowl- 
edge of  the  contract  of  assumption,  the  grantor  might 
then  release  his  grantee.-  But  Bockes,  J.,  has  set  aside  that 
intimation  as  being  without  authority.^  A  grantor  can- 
not release  his  grantee  from  his  contract  of  assumption 

I  ^1  Devlin  V.  Murphy,  56  How.  (N.  Y.)  326  (1878);  S.  C,  5  Abb. 
N.  C.  (N.  Y.)242  (1878),  per  Van  Vorst,  J.,  reviewing  Stephens 
V.  Casbacher,  8  Hun  (N.  Y.),  116  (1876).  See  Fleischauer  v. 
DoeHner,  58  How.  (N.  Y.)  190  (1879),  per  Van  Vorst,  J.,  distin- 
guishing Devlin  v.  Murphy,  supra,  under  nearly  the  same  state 
of  facts.  In  Laing  v.  Byrne,  34  N.  J.  Eq.  52  (1882),  the  grantor 
took  a  reconveyance  of  the  land,  re-assuming  the  mortgage,  and 
the  grantee  was  held  thereby  discharged  from  any  liability. 

2  Whiting  V.  Geary,  14  Hun  (N.  Y.),  498,  500  (1878);  Paine  v. 
Jones,  lb.  577  (1878) ;  aff 'd  76  N.  Y.  274  (1879).  In  point, 
Brewer  v.  Maurer,  38  Ohio  St.  543  (1883) ;  Gilbert  v.  Sanderson, 
56  Iowa,  349  (1882). 

3  Douglass  V.  Wells,  18  Hun  (N.  Y.),  88  (1879). 


GRANTOR    CAN    RELEASE    GRANTEE    IN    NEW    JERSEY.    245 

as  against  a  purchaser  of  the  mortgage,  who  has 
reUed  upon  the  contract  of  assumption  as  it  aj)peared 
on  record.^  The  proposition  of  this  section  is  best  sus- 
tained upon  the  second  of  the  foregoing  theories,  that 
if  one  person  makes  a  promise  to  another,  upon  a  valu- 
able consideration  for  the  benefit  of  a  third  person,  that 
third  person  can  maintain  an  action  on  the  promise.'^ 

In  New  Jersey,  however,  the  right  of  a  mortgagee  to 
take  advantage  of  the  contract  of  assumption  against  a 
purchaser  is  based  upon  the  doctrine  of  subrogation  ; 
and  contrary  to  the  New  York  decisions,  it  is  held  that 
the  grantor  may  release  his  purchaser  from  his  personal 
liability  to  the  mortgagee,  even  after  the  commence- 
ment of  a  foreclosure,  and  though  the  contract  be  ab- 
solute and  unconditional.  Thus  where  a  release  of  an 
assumption  was  orally  agreed  upon  before  suit  was 
brought  to  foreclose  the  mortgage,  but  was  not  exe- 
cuted in  writing  till  after  suit  was  brought,  but  was 
for  a  valuable  consideration  and  without  the  grantor's 
knowledge  of  the  suit,  it  was  held  to  relieve  the  grantee 
from  all  liability  to  the  mortgagee.'^  But  where  the 
release  was  executed  by  an  insolvent  grantor  without 
consideration  and  after  notice  of  foreclosure,  for  the  sole 
and  admitted  purpose  of  defeating  the  mortgagee's 
claim  in  equity  for  a  deficiency,  it  was  held  void. 
"  This  act  of  release  or  discharge,  to  be  effectual,  must  be 
done  bona  fide,  and  not  merely  for  the  purpose  of  thwart- 
ing the  mortgagee  and  depriving  him  of  an  equity  to 


1  3  Fed.  Rep.  782,  789  ;  Jones,  §  264. 

2  Douglas  V.  Wells,  18  Hun  (N.  Y.),  88,  92  (1879).     See  §  104, 

CtYltB 

■^  O'Neill  V.  Clarke,  33  N.  J.  Eq.  444  (1881). 


246  PARTIES    TO    MORTGAGE    FORECLOSURES. 

which  he  is  entitled.  Where  a  person  in  consideration 
of  a  debt  due  from  him  agrees  with  his  creditor  that  he 
will,  in  discharge  of  it,  pay  the  amount  to  the  creditor 
of  the  latter,  in  discharge  or  on  account  of  a  debt  due 
from  the  latter  to  him,  though  the  agreement  may  be 
bona  fide  rescinded  by  the  parties  to  it  for  consideration 
or  reasons  satisfactory  to  themselves  and  without  account 
or  liability  to  the  creditor,  who  is  not  a  party  to  it,  yet 
if  the  promisee  be  insolvent,  and  the  rescission  be  merely 
a  forgiving  of  the  debt  for  the  mere  purpose  of  defraud- 
ing the  creditor  of  the  promisee,  or  protecting  the  prom- 
i^er  against  his  liability,  the  rescission  will  not  avail  in 
equity."^  In  another  case,  where  a  mortgagor  repur- 
chased of  his  grantee,  who  had  assumed  payment,  he 
in  turn  assuming  payment,  the  grantee  of  the  mort- 
gagor was  held  discharged  from  all  liability  for  the 
reason  that  the  mortgage  had  not  become  due  and  that 
the  mortgagee  had  suffered  no  injury.^ 

It  is  thus  seen  what  an  important  part  these  two  doc- 
trines of  subrogation  and  of  a  contract  for  the  benefit  of 
a  third  person  have  played  in  the  development  of  the 
law  adjudging  the  rights  of  parties  interested  in  the 
contract  of  assumption  of  a  mortgage.  Even  to-day 
there  is  a  lack  of  agreement  among  the  courts  as  to 

1  Trustees  for  Public  Schools  v.  Anderson,  30  N.  J.  Eq.  366, 
368  (1879).  See  also  the  same  case  reported  on  appeal  as  Young  v. 
Trustees,  31  id.  290,  297  (1879),  per  Depue,  J.,  collating  and  re- 
viewing the  cases  in  a  long  opinion,  and  holding  that  a  bona  fide 
release  by  the  grantor  will  discharge  the  grantee  from  all  liability 
to  the  mortgagee. 

2  Crowell  V.  Currier,  27  N.  J.  Eq.  152  (1876).  See  Laing  v. 
Byrne,  34  id.  52  (1881),  where  nearly  the  same  facts  are  stated. 
See  also  Crowell  v.  Hospital,  etc.,  27  id.  650  (1876),  per  Depue, 
J.,  who  at  page  657  quotes  the  language  of  Rapallo,  J.,  as  given 
above,  calls  it  an  obiter  dictum,  and  rules  contrary  to  it. 


INTERMEDIATE  PURCHASERS  ASSUMING  PAYMENT  LIABLE.  247 

wJiich  doctrine  should  prevail  in  the  interpretation  of 
the  contract.  But  the  theory  of  a  benefit  for  a  third 
person  is  the  broadest,  most  equitable,  and  most  sus- 
ceptible of  application  to  the  various  cases  that  have 
arisen,  and  it  is  in  growing  favor  with  the  courts. 

§  108.  Intermediate  purchaser,  having  assumed  payment 
of  the  mortgage,  liable. 

It  may  be  stated  as  a  general  rule,  that  all  interme- 
diate purchasers  who  have  in  succession  from  the  original 
obligor,  through  mesne  conveyances,  assumed  the  pay- 
ment of  a  bond  and  mortgage,  are  personally  liable  as 
sureties  for  a  judgment  of  deficiency  in  an  action  to 
foreclose  the  mortgage  brought  by  the  mortgagee  or 
his  assignee.'  No  reason  presents  itself  why,  if  the 
first  purchaser  from  the  mortgagor  is  liable,  the  suc- 
ceeding purchasers  from  the  mortgagor's  grantee  should 
not  also  be  held  personally  liable  for  the  mortgage  debt, 
either  on  the  doctrine  of  subrogation  or  of  liability  for 
a  contract  made  for  the  benefit  of  a  third  person.  This 
proposition  has  been  but  once  squarely  before  a  court 
in  New  York,  when  Vice  Chancellor  McCoon,^  in  1841, 
held  the  contrary,  that  intermediate  purchasers  were 
not  liable;  but  this  case  is  nowhere  referred  to  or  cited, 

1  Cashman  v.  Henry,  75  N.  Y.  103  (1878) ;  Flagg  v.  Gelt- 
macher,  98  111.  293  (1882);  Scarry  v.  Eldridge,  63  lud.  44  (1878). 
In  point,  Smith  v.  Ostermeyer,  68  id.  432  (1879) ;  Brewer  v. 
Maurer,  38  Ohio  St.  543  (1883).  In  point,  Pruden  v.  Williams, 
26  N.  J.  Eq.  210  (1875) ;  Youngs  v.  Trustees  Pub.  Schools,  31  id. 
290  (1879) ;  Jarman  v.  Wiswall,  24  id.  267  (1873),  per  Chan- 
cellor RuNYON,  collating  the  cases  and  discussing  the  legal 
reasons  upon  which  the  practice  rests,  and  stating  that  the 
decree  should  be  the  same  as  that  directed  in  Luce  v.  Hinds, 
Clarke  Ch.  (N.  Y.)  453  (1841),  per  Vice-Chancellor  Whittlesey; 
see  the  next  section. 

^  Lockwood  V.  Benedict,  3  Edw.  Ch.  (N.  Y.)  472  (1841). 


248  PARTIES    TO    MORTGAGE    FORECLOSURES. 

and  from  the  obiter  dicta}  in  later  cases  it  is  believed 
that  it  is  not  good  law,  and  will  be  overruled.  Fur- 
thermore, it  is  not  consonant  with  the  general  princi- 
ples of  the  law  of  principal  and  surety.  It  is  well  set- 
tled that  the  successive  assignors  of  a  mortgage,  all  of 
whom  have  guaranteed  its  payment,  are  personally 
liable  for  the  mortgage  debt  to  the  plaintiff  foreclosing. 
By  analogy  the  same  cases  support  the  proposition  of 
this  section." 

Intermediate  purchasers,  who  have  not  assumed  the 
payment  of  the  mortgage,  are,  of  course,  not  liable ; 
neither  are  intermediate  purchasers  liable,  though  they 
may  have  assumed  the  payment  of  the  mortgage,  if 
there  is,  prior  to  their  jDurchase,  a  break  in  the  line  of 
the  several  contracts  of  assumption  in  the  successive 
mesne  conveyances.^ 

§  109.  Assignor  of  a  mortgage  guaranteeing  payment  or 
collection,  liable. 

An  assignor  of  a  mortgage,  wdio,  in  the  assignment 
or  by  a  separate  instrument,  guarantees  the  payment  or 
collection  of  the  mortgage,  is  personally  liable  to  his 
assignee,  and  may  be  made  a  defendant  to  an  action  for 
foreclosure,  for  the  purpose  of  recovering  against  him  a 
judgment  of  deficiency.^     In  those  states  where  no  pro- 

1  In  Dimiiing  v.  Leavitt,  85  N.  Y.  30  (1881),  interniediate 
purchasers  who  had  assumed  the  payment  of  a  mortgage  were 
made  parties  in  an  action  to  foreclose,  and  a  personal  judgment 
for  deficiency  demanded  against  them.  No  objection  was  raised 
by  tliem,  and  Andrews,  J.,  throughout  his  opinion,  speaks  of 
them  as  though  they  were  personally  liable. 

2  See  the  next  section. 

3  Vrooman  v.  Turner,  69  N.  Y.  280  (1877). 

4  Leonard  v.  Morris,  9  Paige  (N.  Y.),  90  (1841) ;  Curtis  v.  Ty- 
ler, lb.  432  (1842) ;  Luce  v.  Hinds,  Clarke  Ch.  (N.  Y.)  453  (1841) ; 


ASSIGNOR  OF  MORTGAGE  GUARANTEEING  PAYMENT  LIABLE.  249 

vision  is  made  for  the  recovery  of  a  personal  judgment 
in  an  action  to  foreclose  a  mortgage,  such  a  guarantor 
cannot,  of  course,  be  made  a  party  to  the  action;  the 
only  remedy  against  him  is  a  separate  action  at  law. 
In  New  York  an  action  at  law  can  also  be  subsequently 
maintained,  but  only  by  consent  of  the  court  in  which 
the  mortgage  was  foreclosed.  In  actions  at  law,  a  dis- 
tinction is  made  between  a  guaranty  of  payment  and  of 
collection ;  ^  but  in  the  equitable  action  of  foreclosure,  if 
a  party  is  in  any  way  liable  for  the  debt,  he  can  be  made 
a  defendant.'- 

Bristol  V.  Morgan,  3  Edw.  Ch.  (N.  Y.)  142  (1837);  Jones  v. 
Steiiibergli,  1  Barb.  Ch.  (N:  Y.)  250  (1845)  ;  N.  Amer.  Fire  Ins. 
Co.  V.  Handy,  2  Sandf.  Ch.  (N.  Y.)492  (1845) ;  Officer  v.  Burchell, 
44  N.  T.  Sum-.  Ct.  575  (1879);  Craig  v.  Parkis,  40  N.  Y.  181 
(1869) ;  Hunt  v.  Piirdy,  82  id.  486  (1880)  ;  New  York  Code, 
§  1627.  In  Harlem  Savings  Bk.  v.  Mickelsbiu-gh,  57  How.  (N. 
Y.)  106  (1878),  the  order  of  liability  between  guarantors  and 
grantors  assuming  payment  is  considered.  In  point,  Claflin  v. 
Reese,  54  Iowa,  544  (1880),  also  Jarman  v.  Wiswall,  24  N.  J.  Eq. 
267  (1873).  In  Robertson  v.  Cauble,  57  Ind.  420  (1877),  the 
indorser  of  a  note  secured  by  a  mortgage  was  made  a  defendant. 
See  Stark  v.  Fuller,  42  Penn.  320  (1862).  In  Fluck  v.  Hager,  51 
id.  459  (1866),  the  mortgage  came  back  into  the  hands  of  the 
first  guarantor,  who  foreclosed  ;  he  was  not  allowed  to  enforce  the 
guaranty  against  the  intermediate  guarantors.  Under  the  statute 
of  1858,  in  Wisconsin  a  guarantor  could  not  be  made  a  defendant 
for  the  purpose  of  recovering  a  personal  judgment  against  him; 
Borden  v.  Gilbert,  13  Wis.  670  (1861)  But  by  chap.  243  of  the 
laws  of  1862,  the  law  was  changed  so  that  a  {jersonal  judgment 
can  now  bT?  recovered  ;  Burdick  v.  Bardick,  20  Wis.  348  (1866). 

1  In  Johnson  v.  Shepard,  35  Mich.  115  (1876),  it  was  held  that 
a  guarantor  of  collection  ought  not  to  be  made  a  party  defendant 
to  a  foreclosure  suit  for  the  reason  that  no  liability  attaches  to  the 
guarantor  till  every  remedy  against  the  principal  has  been  ex- 
hausted. Such  a  guarantor  may  be  made  a  [)arty  under  the 
New  Y'ork  rule ;  the  fact  of  a  primary  and  a  secondary  liability 
must,  however,  be  recognized  and  provided  for  in  the  decree ; 
Cady  V.  Sheldon,  38  Barb  (N.  Y.)  103  (1862). 

-  New  York  Code,  S  1627.  See  Vanderbilt  v.  Schreyer,  91  N.  Y. 
392,  396  (1883),  and  the  able  opinion  per  Ruger,  Ch.  J.,  reversing 
21  Hun,  537. 


250  PARTIES    TO    MORTGAGE    FORECLOSURES. 

The  decree  of  foreclosure  and  judgment  for  deficiency 
should  specify  in  order  the  respective  liabiHties  of  the 
parties  who  have  guaranteed  the  payment  or  collection 
of  the  debt,  or  who  are  otherwise  obligated  for  it ;  ^  the 
decree  must  always  contain  conclusions  and  directions 
in  harmony  with  the  general  law  of  principal  and  surety. 
Thus  Vice-Chancellor  Whittlesey  in  Luce  v.  Hinds'^  made 
the  judgment  of  foreclosure  "  for  the  sale  of  the  mort- 
gaged premises  and  a  personal  decree  against  the  obligor 
(mortgagor)  for  the  deficiency,  and  in  case  an  execution 
against  him  does  not  realize  the  money,  an  execution 
must  afterwards' go  against  the  guarantor  (assignor)  of 
the  mortgage,  for  any  balance  due  after  sale  of  the 
premises,  and  execution  unsatisfied  against  the  obligor."  ^ 
The  execution  must  not  issue  against  the  guarantor  in 
any  case  until  an  execution  against  the  person  primarily 
liable  has  been  returned  unsatisfied. 

§  110,  Intermediate  assignors  of  a  mortgage  guaranteeing 
payment,  liable. 

It  is  generally  well  established  that  the  transfer  of  a 
debt  or  obligation  carries  with  it  as  an  incident  all  se- 
curities for  its  payment.  Thus  the  assignment  of  a 
bond  and  mortgage  gives  to  the  assignee  the  benefit  of 
and  the  right  to  sue  upon  a  guaranty  by  a  previous 
assignor  for  their  collection  ;  and  this  proposition  is  sus- 
tained, although  such  guaranty  may  not  be  in  terms  trans- 

1  Leonard  v.  Morris,  9  Paige  (N.  Y.),  90  (1841);  Luce  v.  Hinds, 
Clarke  Ch.  (N.  Y.)  453,  456  (1841) ;  Jones  v.  Steinbergh,  1  Barb. 
Ch.  (N.  Y.)  253  (1845). 

2  Clarke  Ch.  (N.  Y.)  457  (1841). 

^  See  also  the  quotation  from  the  opinion  of  Chancellor  Wal- 
worth in  Curtis  v.  Tyler,  9  Paige  (N.  Y.),  435  (1842),  in  the  note 
to  §  94,  ante  :  Jones  v.  Steinbergh,  1  Barb.  Ch.  (N.  Y.)  253  (1845), 
and  the  note  in  §  89,  ante. 


INTERMEDIATE  ASSIGNORS  GUARANTEEING  IT  LIABLE.    251 

ferred  with  the  bond  and  mortgage.^  This  principle  is 
in  harmony  with  the  proposition  stated  in  the  second 
preceding  section,  that  an  intermediate  purchaser  who 
has  assumed  the  payment  of  a  mortgage  is  personally 
liable  for  the  mortgage  debt,  providing  his  inter- 
mediate grantors  were  liable.  It  is  suggested  as  a  query, 
whether  the  same  principles  of  law  that  are  applicable 
to  intermediate  purchasers  assuming  the  payment  of  a 
mortgage,  are  not  also  applicable  to  intermediate  assign- 
ors guaranteeing  payment ;  but  in  the  latter  case  it  is 
not  believed  that  an  unbroken  line  of  guaranties  is  re- 
quired in  order  to  hold  liable  those  who  have  guaranteed 
payment. 

§  111.  Assignors    of  a.  mortgage,  covenanting  as  to    title 
and  against  defenses,  liable. 

The  query  is  raised  here  as  to  whether  a  person,  who 
guarantees  that  the  title  to  a  mortgage  is  perfect  or  that 
there  are  no  defenses  against  it,  can  be  made  a  defend- 
ant to  an  action  to  foreclose  the  mortgage  for  the  purpose 
of  recovering  a  personal  judgment  against  him  for  a 
breach  of  such  covenant.  He  might  be  made  a  party,  on 
the  theory  that  he  is  interested  in  the  action  and  that 
a  complete  adjudication  can  be  made  only  by  bring- 
ing him  before  the  court.  On  the  other  hand,  it  can 
scarcely  be  claimed  that  he  "  is  liable  to  the  plaintiff 
for  the  payment  of  the  debt  secured  by  the  mortgage."- 

1  Craig  V.  Parkis,  40  N.  Y.  181  (1869);  Ketchell  v.  Burns,  24 
Wend.  (N.  Y.)  456  (1840) ;  First  Nat.  Bk.  of  Dubuque  v.  Carpen- 
ter, 41  Iowa,  518  (1875).  See  Fluck  v.  Hager,  51  Perm. '459 
(1866),  where  the  mortgage  came  back  into  the  hands  of  the  first 
guarantor,  who  foreclosed ;  he  was  not  allowed  to  enforce  their 
guaranties  against  the  intermediate  guarantors. 

2  New  York  Code,  §  1623.  See  Knickerbocker  Ice  Co.  v.  Nel- 
son, 8  Hun  (N.  Y.),  21  (1876). 


252  PARTIES    TO    MORTGAGE    FORECLOSURES. 

In  case  of  such  a  guaranty  it  would  certainly  be  safe  for 
the  plaintiff  to  omit  the  guarantor  as  a  party  to  the 
foreclosure,  and  subsequently,  by  leave  of  the  court, 
to  commence  an  action  at  law  against  him  for  a  breach 
of  his  covenant. 

§  112.  All  persons  guaranteeing  payment  or  collection  of  a 
bond  and  mortgage  by  a  separate  instrument,  liable. 

In  the  preceding  section  it  has  been  seen  that  the 
assignor  of  a  bond  and  mortgage,  who  guarantees  its 
payment  in  the  same  instrument,  is  personally  liable  to 
the  assignee  of  the  mortgage  foreclosing,  for  a  judg- 
ment of  deficiency.  The  same  rule  and  cases  also  apply 
if  the  guaranty  is  made  by  a  separate  instrument,  exe- 
cuted by  persons  in  no  way  interested  in  the  mortgage.^ 
This  is  based  upon  the  principle  that  a  creditor  is 
entitled  to  the  benefit  of  all  pledges  and  securities  given 
to,  or  in  the  hands  of,  a  surety  of  the  debtor  for  his  in- 
demnity, and  the  rule  is  true  whether  the  surety  has 
been  injured  or  not,  as  it  is  a  trust  created  for  the  bene- 
fit of  the  surety  of  the  debt  and  attaches  to  it."- 

§  113.  Married  women  obligating  themselves  in  any  of  the 
preceding  -ways,  generally  liable. 

A  married  woman  who  purchases  the  equity  of  re- 
demption in  mortgaged  premises,  and  assumes  the  pay- 
ment of  the  mortgage  in  the  deed  of  conveyance,  is 
personally  liable  to  the  mortgagee  for  a  judgment  of 
deficiency,  if  her  grantor  was  also  personally  liable, 
although  she  may  not  charge  her  separate  estate  with 

1  Grant  v.  Griswold,  82  N.  Y.  .569  (1880) ;  Hunt  v.  Purdy,  82 
id.  486  (1880). 

2  Crow,  McCreary  &  Co.  v.  Vance,  4  Clarke  (Iowa),  442  (1857), 
citing  Curtis  v.  Tyler,  9  Paige  (N.  Y.j,  431  (1842). 


MARRIED    WOMEN    ASSUMING    PAYMENT    LIABLE.         253 

the  payment  of  the  mortgage  debt.^  This  proposition 
was  squarely  before  Andrews,  J.,  in  Cashman  v.  Henry^ 
in  1878,  and  after  referring  to  the  Massachusetts  and  New 
Jersey  statutes,  which  are  similar  to  those  of  New  York, 
he  based  his  decision  upon  the  fact  that  a  "  married 
woman  as  incident  to  her  right  to  acquire  real  and  per- 
sonal property  by  purchase,  and  hold  it  to  her  sole  and  sep- 
arate use,  may  purchase  property  upon  credit,  and  bind 
herself  by  an  executory  contract  to  pay  the  consideration 
money,  and  that  her  bond,  note,  or  other  engagement 
given  and  entered  into  to  secure  the  payment  of  the 
purchase  price  of  property  acquired  and  held  for  her 
separate  use,  may  be  enforced  against  her  in  the  same 
manner,  and  to  the  same  extent  as  if  she  were  a  feme 
sole.'"-^  If  her  grantor  was  not  liable,  she,  of  course, 
would  not  be  liable. 


1  Cashman  v.  Henry,  75  N.  Y.  103  (1878) ;  Vrooman  v.  Tnnier, 
69  id.  280  (1877),  reversing  8  Hun,  78  (1876).;  Ballin  v.  Dyllaye, 
37  N.  Y.  35  (1867);  Scott  v.  Otis,  25  Hun  (N.  Y.),  35  (1881); 
Bush  V.  Babbitt,  25  id.  214  (1881);  Flynn  v.  Powers,  35  How. 
(N.  Y.)  279  (1868) ;  aff' d36id.  289  (1868) ;  S.  C,  54  Barb.  (N.  Y.) 
550  (1868).  See  Munson  v.  Dyett,  56  How.  (N.  Y.)  333  (1878). 
In  point,  Coolidge  v.  Smith,  129  Mass.  554  (1880),  also  Brewer  v. 
Maurer,  38  Ohio  St.  543  (1883),  citing  the  leading  cases  in  other 
states  and  holding  with  the  New  York  decisions.  See  Culver  v. 
Badger,  29  N.  J.  Eq.  74  (1878),  whereamarried  woman,  to  whom 
a  deed  was  executed  with  an  assum})tion  clause,  was  held  not 
liable  on  its  being  shown  that  she  did  not  intend  to  assume  the 
mortgage  by  accepting  the  deed. 

2  75  N.  Y.  103,  115  (1878) ;  S.  C,  55  How.  (N.  Y.)  234. 

3  In  Huyler  v.  Atwood,  26  N.  J.  Eci.  504  (1875),  per  Vice- 
Chancellor  Van  Fleet,  the  same  question  was  pointedly  before 
the  court,  and  the  ruling  was  the  same  as  in  Cashman  v.  Henry, 
supra.  At  page  506  the  Vice-Chancellor  says  :  "  The  law,  in 
giving  married  women  the  right  to  acquire  and  hold  land,  did 
not  intend  that  their  capacity  to  make  contracts  to  secure  the 
purchase-money  should  be  so  limited  and  restricted  that  they 
could  get  the  land  without  paying  for  it.     Whether  they  secured 


254  PARTIES    TO    MORTGAGE    FORECLOSURES. 

When  a  married  woman  assigns  a  mortgage  owned  by 
her,  guaranteeing  its  payment  or  collection,  her  liability 
will  be  governed  by  the  general  rules  affecting  married 
women's  contracts,^  stated  in  section  97.  Under  the  act 
of  1884  in  New  York,  she  is  now,  of  course,  personally 
liable  upon  all  of  her  contracts,  whatever  their  form  or 
nature.'- 

§  114.  Persons  subsequently  liable  in  any  of  preceding 
■ways,  deceased,  their  estates  liable  —  personal 
representatives  proper  parties,  heirs  and  devisees 
not  proper  parties. 

In  a  preceding  section  it  has  been  seen  that  the 
personal  representatives,  and  not  the  heirs  and  devisees 
of  a  deceased  obligor,  are  proper  parties  defendant  to 
an  action  brought  to  foreclose  a  mortgage  for  the  purpose 
of  obtaining  a  decree,  determining  the  amouat  of  any 
deficiency,  and  directing  the  same  to  be  paid  by  the 
personal  representatives  in  the  due  administration  of  the 
decedent's  estate.'^  When  the  liability  is  incurred  sub- 
sequently to  the  inception  of  the  bond  and  mortgage,  by 
a  contract  of  assumption*  or  by  guaranteeing  payment 
or  collection,  the  rule  is  the  same.'' 

the  payment  of  the  ]iiirchase-nioney  by  bond  and  mortgage,  note, 
or  contract  to  assume  the  payment  of  a  mortgage,  it  is  a  contract 
they  have  a  capacity  to  make,  and  must  be  enforced." 

1  See  Penn.  Coal  Co.  v.  Blake,  85  N.  Y.  226  (1881),  where  a  mar- 
ried woman  expressly  charged  her  separate  estate. 

-  See  §§  96  and  97,  ante,  and  notes. 

3  See  g§  98  and  99,  ante. 

■t  Leonard  v.  Morris,  9  Paige  (N.  Y.),  90  (1841).  See  §§  98 
and  99,  ante. 

5  Scofield  V.  Doscher,  72  N.  Y.  491  (1878) ;  Bache  v.  Doscher, 
67  id.  429  (1876).  See  Mutual  Benefit  Life  Ins.  Co.  v.  Howell, 
32  N.  J.  Eq.  146  (1880). 


PART  IV. 

PRIOR  MORTGAGEES  AND  ADVERSE  CLAIM- 
ANTS  AS  PARTIES  DEFENDANT. 


§  115.  Introductory. 

116.  When  prior  mortgagees   and  lienors   cannot  be  made 

defendants. 

117.  When  they  can  properly  be  made  defendants. 

118.  Parties    having    a   title   paramount   to   the   mortgage 

neither  proper  nor  necessary  defendants. 

119.  Adverse  claimants  neither  necessary  nor  proper  parties. 

120.  Subsequent  mortgagees  or  incumbrancers  claimirfg  pri- 

ority of  lien,  proper  defendants  for  litigating  that  issue. 

§  115.  Introductory.     . 

It  has  been  repeatedly  stated  in  this  work  upon  the 
authority  of  numerous  cases  that  the  only  proper  or 
necessary  parties  to  the  foreclosure  of  a  mortgage  are 
the  mortgagor  and  the  mortgagee  and  those  persons 
who  have  acquired  rights  under  them  subsequent  to  the 
mortgage.  But  aside  from  this  general  rule  there  are 
cases  in  which  it  is  proper  to  make  others  than  such 
parties  defendants  to  the  foreclosure  for  the  purpose  of 
fully  determining  the  issues  involved  or  for  other  pur- 
poses which  the  plaintiff  may  desire  to  accomplish.  It 
sometimes  happens  that  it  is  material  to  the  interests 
of  the  mortgagee  to  make  a  prior  mortgagee  or  lienor 
a  defendant  to  the  action  for  the  purpose  of  ascertaining 


256  PARTIES    TO    MORTGAGE    FORECLOSURES. 

the  exact  amount  of  his  incumbrance  and  of  having  it 
paid  from  the  proceeds  of  the  sale ;  contests  as  to 
priority  between  mortgages  upon  the  same  premises 
can  be  litigated  most  directly  in  an  action  to  foreclose 
if  all  the  mortgagees  are  brought  within  the  jurisdic- 
tion of  the  court ;  and  at  one  time  there  was  a  great 
deal  of  doubt  as  to  whether  adverse  claimants  should  not 
be  made  defendants  to  a  foreclosure  for  the  purpose  of 
settling  their  claims.  These  and  other  questions  as  to 
who  can  rightly  be  made  parties  to  a  foreclosure  for  a 
full  determination  of  all  the  issues  involved  are  pre- 
sented to  every  practicing  attorney.  It  is  the  design 
of  this  chapter  to  notice  briefly  these  ^miscellaneous 
matters. 

§  116.  When    prior    mortgagees   and  lienors    cannot  be 
made  defendants. 

It  may  be  stated  as  a  general  rule  that  persons  hold- 
ing mortgages  or  liens  prior  to  the  mortgage  under 
foreclosure  are  neither  necessary  nor  proper  parties  to 
the  action.^     A  foreclosure  is  an  equitable  action  in  rem 

1  Adams  V.  McPartlin,  11  Abb.  N.  C.  (N.  Y.)  369  (1882); 
Hamlin  v.  McCahiU,  Clarke  Ch.  (N.  Y.)  249  (1840) ;  see  the 
note  to  this  case,  citing  numerous  authorities.  Western  Ins.  Co. 
V.  Eagle  Fire  Ins.  Co.,  1  Paii^^e  (N.  Y.),  284  (1828);  Emigrant 
Industrial  Savings  Bk.  v.  Goldman,  75  i^.  Y.  127,  131  (1878); 
Smith  V.  Roberts,  62  How.  (N.  Y.)  196,  200  (1881) ;  aff'd  91  N. 
Y.  470,  477  (1883) ;  Vanderkemp  v.  Shelton,  11  Paige  (N.  Y.), 
28  (1844);  Holcomb  v.   Holcomb,   2  Barb.   (N.   \.)  20  (1847); 


(1851) ;  Bank  of  Orleans  v.  Flagg,  3  Barb.  Ch.  (N.  Y.)  316  (1848). 
See  Chapman  v.  West,  17  N.  Y.  125  (1858),  where  the  action 
was  to  establish  a  land  contract.  Frost  v.  Koon,  30  id.  428, 
444  (1864).     See  Koch  v.  Parcell,  45  Supr.  Ct.  (N.  Y.)  162,  173 


PRIOR   MORTGAGEES   AND   LIENORS   NOT   PROPER   PARTIES.   257 

designed  to  extinguish  the  mortgage  and  to  cut  off  all 
liens  which  are  subsequent  to  it  upon  the  premises,  and 
not  to  affect  in  any  way  the  title  to  the  premises  or  the 
liens  upon  it  prior  to  the  execution  of  the  mortgage. 
It  is  the  general  practice,  where  persons  holding  prior 
mortgages  are  not  made  parties  and  no  provision  as  to 
their  rights  is  made  in  the  judgment,  to  sell  the  premises 
subject  to  such  mortgages ;  no  portion  of  the  pro- 
ceeds of  the  sale  can  be  applied  to  their  payment.-^ 
A  decree  of  sale  can  generally  have  no  effect  upon  the 
rights  of  prior  lienors,  whether  they  are  made  parties  to 
the  action  or  not."^  In  a  recent  case  it  appeared  that  after 
a  junior  mortgagee  had  commenced  an  action  to  fore- 
close, the  prior  mortgagee  also  commenced  a  fore- 
closure, making  a  defendant  the  junior  mortgagee,  who 
answered  that  an  action  was  pending  for  the  fore- 
closure of  the  junior  mortgage  to  which  the  prior  mort- 
gagee had  been  made  a  defendant,  and  asked  the  fore- 
closure of  the  prior  mortgage  as  well  as  the  foreclosure 
of  his  own ;  the  court  held  after  reviewing  the  authorities 

(1879) ;  also  Hotchkiss  v.  Clifton  Air  Cure,  4  Keyes  (N.  Y.), 
170  (1868),  explaining  the  remedy  of  a  bidder  at  the  sale, 
when  the  referee  varie.-<  the  terms  of  sale  from  the  directions  of 
the  judgment.  In  point,  Jerome  v.  McCarter,  94  U.  H.  7o4,  736 
(1876) ;  Hagan  v.  Walker,  14  How.  (U.  S.)  29,  37  (1852) ;  Patti- 
son  V.  Shaw,  6  Ind.  377  (1855) ;  Farrer  v.  Kloke,  10  Neb.  373, 
377  (1880);  Tome  v.  Mer.  Loan  Co.,  34  Md.  12  (1870);  Weed 
V.  Beebe,  21  Vt.  495,  502  (1849) ;  Warren  v.  Burton,  9  S.  C.  197 
(1877) ;  Hudnit  v.  Nash,  16  N.  J.  Eq.  550  (1862) ;  Williamson  v. 
Probasco,  4  Halst.  (N.  J.  Ch.)  571  (1851)  ;  Dawson  v.  Danbury 
Bank,  15  Mich.  489  (1867) ;  Boward  v.  Hoeg,  15  Fla.  370  (1875) ; 
White  V.  Holman,  32  Ark.  753  (1878).  See  Fisher,  §§  350-353, 
and  the  English  cases  cited.  Contra,  see  Case  v.  Bartholow,  21 
Kan.  300  (1878). 

1  Bache  v.  Doscher,  67  N.  Y.  429  (1876). 

2  See  the  cases  supra;  Smith  v.   Roberts,  91   N.  Y.  470,  477 
(1883). 

17 


258  PARTIES    TO    MORTGAGE    FORECLOSURES. 

at  length  that  the  fact  that  the  prior  mortgagee  was  made 
a  defendant  to  the  foreclosure  of  a  junior  mortgage  did 
not  affect  his  rights  at  all,  and  that  he  might  disregard 
the  foreclosure  of  the  junior  mortgage  and  prosecute 
his  own  foreclosure  to  a  sale/  If  a  prior  mortgagee 
who  has  been  made  a  defendant  to  the  foreclosure  of  a 
junior  mortgage  dies  or  his  interest  devolves  on  another 
pending  the  action,  the  proceedings  may  go  on  without 
reviving  or  continuing  it  against  his  personal  repre- 
sentative or  successor,  as  he  was  not  a  necessary  party 
to  the  foreclosure.-  The  proposition  of  this  section 
also  applies  where  the  prior  lien  is  a  judgment^  or  A 
mechanic's  lien.^  A  prior  lienor  cannot  properly  be 
made  a  defendant  to  an  action  to  foreclose  or  enforce  a 
mechanic's  lien;^ 

Where  in  an  action  to  foreclose  a  mortgage  one  hav- 
ing a  subsequent  mortgage  is  made  a  party  defendant, 
and  such  party  is  also  the  owner  of  mortgages  prior  to 
that  of  the  plaintiff,  he  may  answer  in  the  action  and 
ask  to  have  such  prior  mortgages  paid  out  of  the  pro- 
ceeds of  the  sale  before  applying  any  portion  thereof  to 
the  satisfaction  of  the  plaintiff's  mortgage.^  In  New 
York  it  is  the  usual  practice,  where  prior  incumbrancers 

1  Adams  v.  McPartlin,  11  Abb.  N.C.  (N.  Y.)  369  (1882).  See 
Strobe  v.  Downer,  13  Wis.  10  (1860);  Straight  v.  Harris,  14  id. 
509  (1861). 

-  Hancock  v.  Hancock,  22  N.  Y.  518  (1860). 

3  Frost  V.  Koon,  30  N.  J.  428,  444  (1864). 

*  Emigrant  Industrial  Savings  Bank  v.  Goldman,  75  N.  Y. 
127,  132  (1878). 

^  Emia^rant  Industrial  Savin^-s  Bank  v.  Goldman,  75  N.  Y. 
127,  132"  (1878) ;  Holcomb  v.  "Holcomb,  2  Barb.  (N.  Y.)  20 
(1847);  Vanderkemp  v.  Shelton,  11  Paige  (N.  Y.),  28  (1844); 
Smith  V.  Schaffer,  46  Md.  573  (1877). 

«  Doctor  V.  Smith,  16  Hun  (N.  Y.),  245  (1878). 


WHEN    PRIOR    LIENORS    ARE    PROPER    DEFENDANTS.     259 

are  improperly  made  parties  to  a  foreclosure,  to  order 
the  action  to  be  dismissed  as  to  such  defendants  upon 
their  application,  without  prejudice  to  their  or  the 
plaintiff's  rights  in  any  other  proceeding.^  If  the 
action  is  not  dismissed  as  to  them,  their  rights  may  be 
expressly  reserved  in  the  decree;-  or  they  may  disre- 
gard the  action,  as  the  decree  can  have  no  effect  what- 
ever upon  their  rights.^ 

§  117.  When  they  can  properly  be  made  defendants. 

As  an  exception  to  the  jDroposition  of  the  preceding 
section  a  prior  incumbrancer  by  mortgage,  judgment 
or  otherwise,  may  be  made  a  defendant  to  the  fore- 
closure of  a  junior  mortgage  for  the  purpose  of  having 
the  amount  of  his  claim  ascertained  and  paid  out  of 
the  proceeds  of  the  sale,  but  such  a  purpose  must  be 
specifically  indicated  and  the  prior  claim  set  forth  in 
full  in  the  complaint  ;^  even  in  such  a  case  it  will  be 
impossible  to  compel  the  prior  lienor  to  accept  pay- 
ment from  the  proceeds  of  the  sale  unless  his  lien  has 
matured  and  is  due  and  payable,'^  and  it  is  doubtful 
whether  a  court  will  then  decree  the  payment  of  a 
prior  lien  from  the  proceeds  of  the  sale  unless  the  prior 

1  Corning  v.  Smith,  6  N.  Y.  82  (1851). 

2  San  Francisco  V.  Lawtou,  18  Cal.  465  (1861).  See  Wilkerson 
V.  Daniels,  1  Greene  (Iowa),  179  (1848). 

•*  See  the  cases  cited  in  the  first  note  to  this  section. 

*  Emi4(rant  Industrial  Savings  Bank  v.  Goldman,  75  N.  Y. 
127,182^(1878);  Smith  v.  Roberts,  91  id.  470  (1888);  Holcorab 
V.  Holcomb,  2  Barb.  (N.  Y.)  20  (1847);  Vanderkemp  v.  Shelton, 
11  Paige  (N.  Y.),  28  (1844);  Fisher,  §§  350-353. 

■'  Western  Iiis.  Co.  v.  Eagle  Fire  Ins.  Co.,  1  Paiii-e  (N.  Y.), 
284  (1828) ;  Western  Reserve  Bank  v.  Potter,  Clarke  Ch.  (N.  Y.) 
439  (1841);  Frost  v.  Yonkers  Savings  Bank,  70  N.  Y.  553,  557 
(1877).     See  Hamlin  v.  McCahill,  Clarke  Ch.  (N.  Y.)  249  (1840). 


260  PARTIES    TO    MORTGAGE    FORECLOSURES. 

lienor  has  appeared  and  consented  to  the  decree.^  It 
is  not  advisable  to  make  a  prior  mortgagee  a  party  to 
the  suit  unless  he  previously  indicates  a  willingness  to 
have  the  whole  title  sold  under  the  foreclosure  and 
to  have  all  incumbrances  paid  out  of  the  proceeds  in 
the  order  of  their  priority.'-^  It  is  believed  that  in  a 
proper  case  the  English  rule  concerning  prior  mort- 
gages will  be  followed  in  our  courts.  Under  this  rule, 
if  a  subsequent  mortgagee  desires  to  sell  the  whole 
estate,  he  can  make  the  prior  mortgagee  or  lienor  a 
party  to  the  suit  and  require  him  to  consent  to 
such  a  sale  or  to  refuse  it  at  once.  If  he  concurs,  a 
sale  of  the  whole  estate  will  be  decreed ;  otherwise  the 
decree  will  be  for  a  sale  subject  to  his  prior  lien,  the 
exact  amount,  terms  and  conditions  of  which  can  be 
ascertained  in  the  suit  and  made  known  at  the  sale, 

1  Jerome  v.  McCarter,  94  U.  S.  734  (1876) ;  Roll  v.  Smalley,  2 
Halst.  (N.  J.  Ch.)  464  (1847) ;  Norton  v.  Joy,  6  Bradw.  (111.)  406 
(1880);  Warner  v.  Dewitt  Co.  Bank,  4  id.  305  (1878) ;  Hagan  v. 
Walker,  14  How.  (U.  S.)  29,  37  (1852) ;  Finlev  v.  Bank  of  United 
States,  11  Wheat.  (U.  S.)  304  (1826);  White  v.  Holman,  32  Ark. 
753  (1878) ;  Raymond  v.  Holbron,  23  Wis.  57  (1868) ;  Champlin 
V.  Foster,  7  B.  Mon.  (Ky.)  104  (1846);  Clarke  v.  Prentice,  3 
Dana  (Ky.),  469  (1835);  Persons  v.  Alsip,  2  Ind.  67  (1850); 
Troth  V.  Hunt,  8  Blackf.  (Ind.)  580  (1847);  Evans  v.  McLucas, 
12  H.  C.  56  (1880);  Waters  v.  Bossel,  58  Miss.  602  (1880);  Hud- 
nit  V.  Nash,  16  N.  J.  Eq.  550  (1862).  See  Dunn  v.  Raley,  58 
Mo.  Rep.  134  (1874),  as  to  what  allegations  must  be  made  in 
the  complaint.  See  Gargan  v.  Grimes,  47  Iowa,  180  (1877); 
Anonymous,  4  Halst.  (N.  J.  Ch.)  174  (1849).  See  Tootle  v. 
White,  4  Neb.  401  (1876),  in  point.  If  the  prior  mortgagee 
consents  to  a  sale  he  cannot  afterward  commence  a  foreclosure  of 
his  own  mortgage  ;  Rowley  v.  Williams,  5*Wis.  151  (1856). 

2  Vanderkemp  v.  Shelton,  11  Paige  (N.  Y.),  28  (1844);  Ducker 
V.  Belt,  3  Md.  Ch.  13;  Rucks  v.  Taylor,  49  Mi^s.  552  (1873); 
Miller  v.  Finn,  1  Neb.  254  (1871) ;  Champlin  v.  Foster,  7  B. 
Mon.  (Ky.)  104  (1846);  Clarke  v.  Prentice,  3  Dana  (Ky.),  469 
(1835). 


OWNER    OF    PARAMOUNT    TITLE    NOT   PROPER  DEFENDANT.    261 

SO  that  a  purchaser  can  know  accurately  the  incum- 
brances subject  to  which  he  is  buying  the  title. ^  In 
Indiana,  contrary  to  the  practice  in  nearly  all  other 
states,  a  prior  incumbrancer  is  held  a  proper  party  to 
the  foreclosure  of  a  senior  mortgage,  and  when  made  a 
party  will  be  bound  by  the  decree. - 

§  118.  Parties  having  a  title  paramount  to  the  mortgage 
neither  proper  nor  necessary  defendants. 

Persons  who  own  an  interest  in  mortgaged  premises 
paramount  to  the  mortgage  are  neither  necessary  nor 
proper  parties  to  its  foreclosure,  for  the  reason  that  they 
did  not  acquire  their  rights  under  the  mortgagor  or  the 
mortgagee  subsequent  to  the  execution  of  the  mortgage.^ 
Whether  they  are  made  parties  or  not,  no  decree  in  the 

1  Langtoii  V.  Langtoii,  7  De  G.,  M.  &  G.  (Eng.)  30  (1855); 
Wickenden  v.  Raysoii,  6  id.  210  (1854).  jSee  also  Delabere  v. 
Norwood,  3  Swans.  (Eng.)  144  n.  (1818) ;  Parker  v.  Fuller,  1 
Rnss.  cS:  M.  (Eiia-.)  656  (1830) ;  Bigelow  v.  Cassedy,  26  N.  J.  Eq. 
557  (1875) ;  Potts  v.  N.  J.  Arms  Co.,  17  id.  518  (1865) ;  Gihon  v. 
Belleville  Co.,  7  id.  (3  Halst.)  531  (1849).  8ee  Jerome  v.  Mc- 
Carter,  94  U .  8.  734,  736  (1876),  and  the  cases  cited  in  the  opinion. 
See  Perdicaris  v.  Wheeler,  4  Halst.  (N.  J.  Eq.)  68  (1849);  Per- 
sons V.  Merrick,  5  Wis.  231  (1856). 

2  Masters  v.  Templeton,  92  Ind.  447  (1883),  citing  numerous 
Indiana  cases,  also  holds  that  claims  adverse  to  the  title  may  be 
litigated  in  a  foreclosure;  Merritt  v.  Wells,  18  id.  171  (1862). 

-^  Lewis  V.  Smith,  9  N.  Y.  502,  514  (1854),  aft'g  11  Barb.  (N. 
Y.)  153  (1851) ;  Merchants'  Bank  v.  Thompson,  55  id.  711  (1873) ; 
Rathbone  v.  Hooney,  58  id.  463,  467  (1874)  ;  Hamlin  v.  McCahill, 
Clarke  Ch.  (N.  Y.)  249  (1840),  and  the  note ;  Lee  v.  Parker,  43  Barb. 
(N.  Y.)  611,  614  (1865);  Walsh  v.  Rutgers,  13  Abb.  (N.  Y.)  33 
(1861);  Wincherer  v.  Hewett,  10  Mich.  453  (1862)  ;  Comstock  v. 
Comstock,  24  id.  39  (1871) ;  Horton  v.  Ingersoll,  13  id.  409  (1865) ; 
Wilkinson  v.  Green,  34  id.  221  (1876):  McClure  v.  Holbrook,  39 
id.  42  (1878);  Gage  v.  Perry,  93  111.  176  (1879) ;  Price's  Ex'rs  v. 
Lawton,  27  N.  J.  Eq.  325  (1876),  citing  numerous  cases;  Pelton 
V.  Farmin,  18  Wis.  222  (1864) ;  Palmer  v.  Ya^^er,  20  id.  91  (1865) ; 
Hekia  Fire  Ins.  (Jo.  v.  Morrison,  5(5  id.  133  (1882),  citing  numer- 
ous cases.     See  the  cases  cited  in  the  following  section. 


262  PARTIES    TO    MORTGAGE   FORECLOSURES. 

action  will  in  any  way  affect  their  rights.  Thus  a  widow 
who  did  not  sign  a  mortgage  executed  by  her  husband 
should  not  be  made  a  defendant  to  its  foreclosure  ;  and 
even  if  she  is  made  a  defendant,  her  rights  will 
not  be  affected  in  any  way  by  the  decree.^  This  is 
specially  true  if  the  complaint  does  not  contain  allega- 
tions setting  forth  her  real  rights  in  the  property  and 
asking  to  have  them  foreclosed ;  and  even  with  such 
allegations  in  the  complaint,  it  was  held  in  one  case 
that  the  judgment  passing  upon  her  rights  and  fore- 
closing them  was  erroneous  and  void.'  A  person 
claiming  dower  by  title  paramount  to  the  mortgage  can- 
not be  brought  into  court  in  a  foreclosure  and  made  to 
contest  the  validity  of  her  dower.  Whether  she  is 
made  a  party  or  not,  her  rights  will  remain  unaffected 
by  the  action ;  the  sale  should  be  made  subject  to  her 
dower.  This  rule  also  applies  to  persons  holding  an 
estate  in  remainder  or  reversion,  where  the  life  estate 
or  the  intermediate  interests  of  the  beneficiary  have 
been  mortgaged.'^ 

§  119.  Adverse  claimants   neither  necessary  nor  proper 

parties. 

It  is  now  an  established  rule  in  practice  that  a  fore- 
closure suit  is  not  an  appropriate  proceeding  in  which 
to  litigate  the  rights  of  persons  who  claim  title  to  mort- 

1  Lewis  V.  Smith,  9  N.  Y.  502,  514  (1854),  aff'g  11  Barb.  (N. 
Y.)  153  (1851) ;  Merchants'  Bank  v.  Thomson,  55  id.  7, 11  (1878). 

2  Merchants'  Bank  v.  Thomson,  supra:  Payne  v.  Grant,  23 
Hun  (N.  Y.),  134  (1880) ;  Bradley  v.  Parkhurst,  20  Kan.  4^2 
(1878) ;  Lounsbury  v.  Catron,  8  Neb.  469  (1879) ;  Shellenbaiirer 
V.  Riser,  5  id.  195  (1876);  Roche  v.  Knight,  21  Wis.  324  (1867) ; 
Wicke  V.  Fake,  21  id.  410  (1867). 

3  Rathbone  v.  Hooney,  58  N.  Y.  463,  467  (1847).  See  Stan- 
dish  V.  Dow,  21  lovva,  363  (1866),  a  case  of  trust. 


ADVERSE  CLAIMANTS  NOT  PROPER  DEFENDANTS.   263 

gaged  premises  in  hostility  to  the  mortgagor.^  In  New 
York  it  has  been  determined  that  where  a  party 
setting  up  such  a  claim  is  made  a  defendant  to  the 
foreclosure  of  a  mortgage,  the  decree  will  be  held 
erroneous  and  will  be  refused,  if  it  passes  upon  his 
rights,  though  made  after  a  hearing  upon  the  plead- 
ings and  proofs.^  The  mortgagee  has  no  right  to 
make  one  who  claims  adversely  to  the  title  of  the 
mortgagor  and  prior  to  the  mortgagee,  a  party  de- 
fendant for  the  purpose  of  trying  the  validity  of  his 
adverse  claim  of  title.^  The  bill  of  foreclosure  should 
be  dismissed  as  to  an  adverse  claimant  unless  he  alleges 
in   his    answer,   and   is   prepared    to    prove,  that   the 

1  Eagle  Fire  Co.  v.  Lent,  6  Paige  (N.  Y.),  635,  638  (1837); 
Lewis  V.  Smith,  9  N.  Y.  502,  514  (1854),  aff'g  11  Barb.  (N.  Y.) 
153  (1851) ;  Corning  v.  Smith,  6  id.  82  (1851);  Frost  v.  Koon,  30 
id.  428,  444  (1864);  Bank  of  Orleans  v.  Flagg,  3  Barb.  Ch.  (N. 
Y.)  318  (1848);  Payne  v.  Grant,  23  Hun  (N.  Y.),  134  (1880); 
Meigs  V.  Thomson,  m  How.  (N.  Y.)  466  (1884).  See  also  Brown 
V.  Volkening,  64  N.  Y.  76,  84  (1876) ;  Wurcherer  v.  Hewitt,  10 
Mich.  453  (1862) ;  Comstock  v.  Comstock,  24  id.  39  (1871);  Sum- 
mers V.  Bromley,  28  id.  125  (1873),  citing  New  York  cases. 
Bogey  V.  Shute,  4  Jones  Eq.  (N.  C.)  174  (1858) ;  Banning  v. 
Bradford,  21  Minn.  808  (1875) ;  Newman  v.  Home  Ins.  Co.,  20 
id.  422  (1874) ;  Chamberlain  v.  Lyell,  3  Mich.  448  (1855) ;  Wilkin- 
son V.  Green,  34  id.  221  (1876) ;  Gage  v.  Perry,  93  111.  176  (1879) ; 
Gage  V.  Board  of  Directors,  8  Bradw.  (111.)  410  (1881) ;  Carbine 
V.  Sebastian,  6  id.  564  (1880) ;  San  Francisco  v.  Lawton,  18  Cal. 
465  (1861);  Marlow  v.  Barlew,  58  id.  456  (1878);  Crogan  v. 
Minor,  53  id.  15  (1878)  ;  Lani^  v.  Jones,  5  Leigh  (Va.),  192  (1834) ; 
Lyman  v.  Little,  15  Vt.  576  (1843);  Comely  v.  Hendricks,  8 
Biackf.  (Ind.)  189  (1846);  Pattiscn  v.  Shaw,*6  Ind.  377(1855); 
Dial  V.  Reynolds,  96  U.  S.  340  (1877) ;  Peters  v.  Bowman,  98  id. 
56  (1878).  See  Chicago  Theological  Seminary  v.  Gage,  103  111. 
175  (1882);  Coe  v.  N.  J.  Midland  Ry.,  31  N.  J.  Eq.  105  (1879); 
Shellenbarger  v.  Riser,  5  Neb.  195  (1876). 

2  Corning  v.  Smith,  6  N.  Y.  82  (1851) ;  Lewis  v.  Smith,  9  id. 
502,  514  (1854) ;  Eagle  Fire  Co.  v.  Lent,  6  Paige  (N.  Y.),  635 
(1837). 

^  Eagle  Fire  Co.  v.  Lent,  supra;  see  the  English  authorities 
cited  in  this  case. 


264  PARTIES    TO    MORTGAGE    FORECLOSURES. 

facts  upon  which  he  relies  arose  subsequently  to  the  ex- 
ecution of  the  mortgage.'  Disputes  involving  the  title 
to  the  mortgaged  premises  prior  to  the  execution  of  the 
mortgage  cannot  be  litigated  in  a  foreclosure,  but  must 
be  tried  by  ejectment  or  other  suitable  action  apart 
from  the  foreclosure ;-  but  where  the  title  was  acquired 
at  a  tax  sale  subsequent  to  the  mortgage  the  purchaser 
is  a  proper  party.^  It  is  not  right  that  the  mortgagee 
in  pursuing  his  remedies  should  be  delayed  or  hindered  by 
litigation  upon  a  question  of  title  which  does  not  affect 
his  rights  in  any  way.  In  Indiana  and  Kansas,  how- 
ever, adverse  claims  may  be  litigated  in  a  foreclosure.* 


§  120.  Subsequent  mortgagees  or  incumbrancers  claim- 
ing priority  of  lien  proper  defendants  for^itigating 
that  issue. 

As  has  been  stated  in  the  two  preceding  sections,  par- 
ties who  claim  adversely  or  paramount  to  the  mortgagor 
are  not  even  proper  defendants  in  the  foreclosure  of  a 
mortgage ;  but  parties  who  claim  subsequently  to  the  mort- 
gagor, but  adversely  and  paramountly  to  the  mortgagee, 
are  proper,  if  not  necessary,  defendants  to  a  foreclosure 
for  the  purpose  of  litigating  questions  of  priority  in  lien 

1  Corning  v.  Smith,  6  N.  Y.  82  (1851);  Meigs  v.  Thomson, 
66  How.  (N.  Y.)  466  (1884). 

2  Eagle  Fire  Co.  v.  Lent,  6  Paige  (N.  Y.),  635  (1837) ;  Brun- 
dage  V.  Domestic  and  Foreign  Missionary  Society,  60  Barb.  (N. 
Y.)  204,  213  (1871).  See  Price's  Ex'rs  v.  Lawton,  27  N.  J.  Eq. 
325  (1876). 

^  Horton  v.  Ingersoll,  13  Mich.  40^)  (1865)  ;  Carbine  v.  Sebas- 
tian, 6  Bradw.  (111.)  564  (1880).  See  Chicago  Theological  Sem. 
V.  Gage,  103  111.  175  (1882);  contra,  Roberts  v.  Wood,  38  Wis.  60 
(1875). 

*  Masters  v.  Templeton,  92  Ind.  447  (1883) ;  Bradley  v.  Park- 
hurst,  20  Kan.  462  (1878) ;  Nooer  v.  Short,  lb.  624. 


.  JUNIOR  LIENORS  CLAIMING  PRIORITY  PROPER  PARTIES.    265 

between  the  mortgage  under  foreclosure  and  their  claims. 
This  rule  allows  to  be  brought  into  the  action  for  litiga- 
tion such  questions  only  as  affect  the  rights  of  the 
mortgagee.^  "Whether  a  defendant's  equities  are  prior 
and  superior  to  the  rights  of  the  jjlaintiff  under  his 
mortgage,  or  junior  and  subordinate  thereto,  must 
necessarily  be  determined  in  the  judgment  for  a  fore- 
closure of  the  plaintiff's  mortgage.  The  defendant  is 
not  contesting  the  title  of  the  mortgagor,  but  simply 
asserts  a  right  under  him  prior  in  point  of  time  to  the 
mortgage.  The  question  of  priority  between  the  two 
is  necessarily  involved  in  the  action  and  proper  to  be 
determined  in  it."-^ 

If  a  mortgagee  or  incumbrancer  claiming  priority  is 
not  made  a  defendant,  his  rights  will  be  in  no  way 
affected  by  the  action.  It  is  often  necessary  to  bring 
additional  parties  into  the  action  for  a  complete  de- 
termination of  the  questions  involved  in  the  issue  ;  in 
such  cases  the  application  may  be  made  by  the  plaintiff 
or  the  defendant,  or  the  court  on  its  own  motion  may 
order  such  parties  as  it  deems  necessary  to  be  brought 
within  its  jurisdiction,  but  it  must  be  a  fact  in  each  case 
that  the  party  is  brought  into  court  claims  some 
right  or  interest  that  is  adverse  to  the  claims  of  the 
mortgagee  foreclosing.  The  practice  of  making  a  de- 
fendant   to    a  foreclosure   every  party  who  claims  an 

1  Brown  V.  VolkeniiiK,  64  N.  Y.  76,  84  (1876) ;  Bank  of  Orleans 
V.  Flagg,  8  Barb.  Ch.  (N.  Y.)  816  (1848);  Payne  v.  Grant,  23 
Hun  (N.  Y.),  184  (1880) ;  Board  of  Hupervisors  v.  Mineral  Point 
R.  R.,  24  Wis.  98  (1869);  Krutsiiiger  v.  Brown,  72  Ind.  166  (1880) ; 
Hoppock  V.  Ramsey,  28  N.  J.  Eq.  414  (1877) ;  Cockran  v.  Goodale, 
181  Mass.  464  (1881);  Dawson  v.  Danbury  Bank,  15  Mich.  489, 
495  (1867).     'See  t<§  (3,  12,  18,  16  and  20,  ante. 

-  Brown  v.  Volkenin^S  64  N.  Y.  76,  84  (1876),  per  Allen,  J. 


266  PARTIES    TO    MORTGAGE    FORECLOSURES. 

interest  in  the  mortgage  or  the  premises  in  order  to 
make  a  complete  determination  or  settlement  of  all 
questions  affecting  the  mortgage  or  the  premises,  is 
broadening  and  increasing  in  its  application  by  the 
courts  of  all  our  states.^ 

'  New  York  Code,  §  448.     The  same  principle  has  been  en- 
acted in  the  codes  of  some  other  states. 


INDEX. 


Action.  PAGE. 

To  redeem,  all  mortgagees  necessary  parties 18 

To  foreclose,  cannot  be  two  on  separate  mortgages  on  same  lands 

at  same  time 47 

The  mortgages  should  be  foreclosed  in  one  action 47 

Or  the  senior  mortgage  should  be  foreclosed,  setting  up  the  claim 

on  the  junior  mortgage. 47 

See   FORBCLOSURB. 

Action  at  Law. 

For  recovery  of  mortgage  debt 187,  188,  190,  192,  206 

Formerly  the  only  remedy  to  collect  a  deticiency 187,  188,  189 

Equitable  foreclosure  does  not  extinguish  the  debt 188 

Can  now  be  had  for  a  deficiency  only  by  jiermission  of  the  court 

where  the  mortgage  was  foreclosed 189,  190,  195 

For  mortgage  debt  first  allowed  in  1786 190 

Administrator. 

Of  mortgag-or,  may  foi-eclose  a  mortgage  which  he  personally  holds 
against  the  mortgagor's  premises 11 

See' Personal  Representatives. 

Adverse  Claimants. 

Neither  necessary  nor  pi-oper  parties 262,  264 

See  Paramount  Title. 

Cannot  litigate  advei'se  claims  in  a  foreclosure 263 

Decree  passing  on  their  rights,  not  binding 263 

If  claims  arose  subsequent  to  mortgage,  then  proper  jjarties.  ..263,  264 

Disputes  involving  the  title  cannot  be  litigated  in  a  foreclosni'e 264 

In  Indiana  and  Kansas  the  rule  is  otherwise 264 

Annuitant. 

Necessary  defendant,  if  annuity  charged  by  mortgagor  on  specific 
premises 115 

See  Li'XiATEE. 


268  ASSIGNEE. 

Annuity.  page. 

Mortgage  to  secure,  in  produce 11 

Value  of  produce,  the  measure  of  damages 11 

Mortgage  conditioned  for  support  during  life  may  be  foreclosed. . .  33 
Administrator  of  a  deceased  mortgagee  who  held  an  annuity  mort- 

may  foreclose  for  unpaid  annuity 51 


Assignee.  x 

Sole  owner  of  mortgage,  may  foreclose 12,  175,  176 

The  only  possible  plaintiff 12,  13 

Assignor  not  a  necessary  co-plaintiff  or  defendant 15 

Of  indemnifying  mortgage  may  foreclose 127i 

Pretended,  without  title,  foreclosure  by,  void 13 

Of  mortgage,  with  power  of  sale 13 

Of  one  of  several  notes  is  an  assignee  of  the  mortgage  p)'o  tanto  or 

ivo  rata,  and  may  foi-eclose 14,  15 

Caimot  foreclose  in  the  name  of  the  mortgagee H,  15,  16 

Cannot  foreclose  by  scire  facias 16 

Scire  facias  must  be  in  the  name  of  the  mortgagee 16 

Receives  no  better  title  than  his  assignor  had 17 

Otherwise,  if  the  mortgage  secures  a  negotiable  note  not  due 17 

Joint  assignees 17,  20,  22 

See  Joint  Mortgagees. 

Of  mortgage  collaterally,  necessary  co-plaintiff  or  defendant 28,  29 

Refusal  to  become  co-plaintiff"  should  appear  in  the  complaint,  29,  179,  180 

See  Decree,  Mortgagee. 
Purchaser  at  foreclosure  becomes  an  equitable  assignee  of  the  mort- 
gage, sometimes 34 

Person  advancing  money  to  pay  an  existing  mortgage  becomes  an 

equitable  assignee,  and  may  foreclose 35,  36 

Of  mortgage  without  bond  cannot  foreclose 41,  42,  43 

Such  an  assignment  is  a  nullity 42 

Accessorium  non  cUucit,  seel  sequitur  'principale 42 

Held  a  naked  trust  for  benefit  of  assignee 43 

Assignee  of  bond  without  mortgage  may  foreclose 43,  45 

Assig-nor  a  necessary  party;  may  unite  as  a  co-plaintiff 44,  45 

Assignment  of  bond  held  an  eciuitable  assignment  of  mortgage ..  43,  44 

Assignee  in  bankruptcy  may  foi'eclose 48 

Pendente  lite  may  be  substituted  as  plaintiff"  and  foreclose  in  his  own 

name 49 

May  continue  action  in  name  of  assignor 49 

Change  in  name  of  plaintiff  best  practice 50 

Of  foreign  executor  may  foreclose 59 

Of  subsequent  mortgage  or  judgment  a  necessai-y  pai-ty . . .  153,  156,  157 

Assignor  not  a  necessary  party 153,  156,  157 


ASSIGNEE. 


269 


Assignee — continued.  page. 

Of  junior  mortgage,  conditioiiMlly  or  collaterally,  a  necessary  imily.   InS 

Of  subsequent  lien,  pendente  lite,  not  a  necessary  p;i  i  ty I  aT,   1 58 

May  become  a  party  on  his  own  application 1  ;'> < .    1  ;"8 

May  ajipear  and  defend  in  name  of  assignor 1  .';7,   158 

Of  a  mortgage,  is  an  incumbi'ancer  within  meaning  of  N.  Y.  Code,  158 

Of  mortgage,  absolutely  assigned,  njay  foreclo.-c I"',   176 

Never  a  defendant  in  a  foreclosure 17- .   176 

Proper  defendant  in  an  action  to  redeem 176 

Of  mortgage  assigned  collaterally  or  conditionally 1 TS,  179 

Necessary  defendant,  if  action  commenced  by  assigiior 118,  179 

Assignee  and  assignor  may  unite  as  co-plaintiffs 179 

Omission  of  either  assignee  oi-  assignor  produces  a  defective  title. .    179 
Refusing  to  become  co-plaintiff,  refusal  stated  in  complaint 179,  180 

Assignee  in  Bankruptcy,  or  by  Voluntary  Assignment. 

May  be  a  defendant  in  his  official  capacity  to  a  foreclosure  brought 

by  him  individually 18 

May  foreclose  mortgage  belonging  to  his  assignor 48 

May  assign  the  mortgage 48 

Assignor  in  bankruptcy  not  a  necessai-y  party 48 

But  veiy  proper 48 

Assignor  may  sometimes  foreclose ." 48 

-  Purchaser  of  premises  of,  a  necessary  defendant 87,     89 

Peiidente  lite  of  a  foi-eclosure,  held  formerly  a  necessary  defend- 
ant ;  not  necessary  at  present 93,  94,  128,  129 

Of  mortgagor  or  owner  of  premises,  a  necessaiy  defendant 127 

Receiver  of  insolvent  corporation  also  necessary 127 

Assignment  must  be  made  before  commencement  of  foi-eclosure .  .127,  128 
Assignment  made  jiending  foreclosure,   assignee  not  a  necessary 

defendant 128,  129 

Formerly  it  was  held  necessary  to  bring  him  into  the  action 128,  129 

Can  be  made  a  defendant  now  on  his  own  or  plaintiff 's  application. .   129 

Of  subsequent  mortgagee  or  lienor,  a  necessary  defendant 165,  166 

Dying,  pending  foreclosure,  his  successor  a  necessary  j)arty ....  165,  166 
Proper  party   for  fixing  amount  of  deficiency  against  bankrupt's 
estate,  to  be  paid  in  the  settlement  of  his  estate 221 

Assignment. 

Defective,  mortgagee  and  assignee  necessaiy  parties 12,  12??,  167i 

After,  mortgagee  not  a  proper  party 12 

Invalid,  makes  a  void  foreclosure 13 

By  mari-ied  woman  in  Pennsylvania,  void  unless  signed  by  husband,  13 

To  wife,  of  mortgage  on  husliand's  land,  generally  valid 13 

In  Maine,  held  to  merge  the  mortgage 13 

To  husl)and,  of  mortgage  on  wife's  land,  valid 13 


270  ASSIGNOR. 

Assignment— co7itmued.  page. 

In  writing,  not  indispensable  to  be .- 14 

By  parol  sufficient ;  contra  in  Massachusetts  and  Maine 14 

By  mere  delivery  sufficient  to  sustain  foreclosure 14 

But  assignor  then  a  necessary  party 14 

Quit-claim  deed  may  operate  as  an  assignment,  especially  in  Maine,     14 

Suliject  to  equities  against  the  mortgage 16 

Of  note  opei-ates  as  an  assignment  of  the  mortgage  -pi-o  tanto 24 

Form  of,  immaterial;  intention  essential 36,     37 

Equitable.     See  Surety. 

Of  mortgage  pending  foreclosure 49 

By  heir  of  mortgagee,  not  valid 54 

See  Assignor  and  Assignee. 
Assignor. 

An  executor  or  administrator  may  make  a  valid  assignment \2n 

Heir  cannot  make  ;  foreclosure  by  assignee  of,  void 12% 

Defense  pleaded  against  assignor,  he  may  be  made  a  defendant. ...     15 
Of  subsequent  mortgage  or  judgment  not  a  necessary  party,  153, 156,  157 

Having  sold  mortgage,  no  longer  a  necessary  party 172,  175 

Personal  i-epresentatives  making  an  assignment  not  necessary. .  J 72,  173 
Having   guaranteed   payment,  necessary    party   for  judgment   of 

deficiency 173,  174 

Proper  party  if  usury,  fraud  or  other  equitable  defense  pleaded,  174,  175 
Or  notice  may  be  given  him  of  the  defense,  and  he  will  be  bound  by 

the  decree 15,  175 

Proper  party  if  assignment  imperfect  in  form  or  by  parol 174 

Necessary  defendant  to  foreclosure  by  assignee  of  the  bond  alone. .   174 
Of  mortgage  collaterally  or  conditionally  assigned  a  necessary  party,  170 

171,  176,  177 

Necessary  defendant  if  action  commenced  by  assignee 176,  177 

Assignor  and  assignee  may  unite  as  co-plaintiffs 176,  177 

Reasons  why  a  necessary  party 177,  178 

Of  mortgage,  guaranteeing  payment  oi'  collection,  liable  for  defi- 
ciency  '-^07.  248,  250 

May  be  defendant  to  foreclosure 248,  249 

Action  at  law  may  be  maintained  against 249 

See  Guarantor. 

Intermediate  assignors  guaranteeing  mortgage,  liable 250,  251 

Complete  line  of  successive  guaranties  not  necessary 250,  251 

Covenanting  as  to  title  and  against  defenses,  liable 251 

Assumption  of  MortgUg-e.— See  Grantee,  Grantor,  Mortgagee. 
Grantee  assuming    payment,  liable  for  judgment  of  deficiency  in 

foi-eclosure 228-235 

Part  only  of  moi-tgage  assumed,  liable  for  that  part  only 228,  229 

Assumption  by  tenants  ia-:'.omin'in,  heM  jointly  and  sevei-ally  liable,   229 


ASSUMPTION    OF    MORTGAGE.  271 

Assumption  of  M.OTtgage—conthiued.  page. 

Grantor  becomes  a  mere  surety 229 

Remedy  of  grantor  to  protect  himself 229 

Mortgage  debt  becomes  grantee's  own  debt 2'29 

Oral  agreement  to  assume,  held  sufficient 229?/,,  233 

How  liability  enforced  in  different  states 228n 

Specific  words  not  necessai-y  to  express  assumption 2:^2 

Intention  the  essential  thing , 227-232 

Expression,  "  subject  to  payment " 232 

Expression,  "  subject  to  assumption  as  part  of  consideration  " 232 

Other  expressions 224,  225,  232 

Assumption  of  interest  imposes  no  liability  for  principal  232,  233 

Grantee  need  not  sign  deed  to  bind  himself 233 

Acceptance  of  deed  sufficient 233 

If  no  intention  to  assume,  grantee  will  not  be  held  liable 233,  234 

Deed  executed  merely  to  transfer  title,  grantee  not  liable 234 

Bona  fide  pui-chaser  of  mortgage,  i-elying  on  contract  of  assump- 
tion as  shown  on  the  record,  may  enfoi-ce  it 234 

Deed  must  be  absolute  in  its  terms 234,  235 

Must  convey  the  whole  or  an  undivided  i^art  of  premises 234,  235 

Failure  of  title  held  a  good  defense  for  the  grantee 235 

Grantee  cannot  plead  usury 235,  236 

Nor  other  defenses  affecting  validity  of  mortgage 235,  236 

Theories  of  law  giving  mortgagee  benefit  of  assumption 236,  237 

Theory  of  equitable  subrogation 236 

Theory  of  contract  for  benefit  of  third  person 236,  237 

Cannot  be  enforced  against  grantee  unless  his  grantor  was  liable,  238,  239 
A  break  in  the  line  of  successive  assumptions  will  release  subse- 
quent grantees  from  all  liability 238,  239 

Above-mentioned  theories  applied , 238,  239 

Want  of  consideration  the  basis  of  the  rule 239 

In  Pennsylvania,  grantee  always  held  liable,  whether  grantor  liable 

or  not  ] 239,  240 

By  a  subsequent  mortgagee  does  not  make  him  personally  liable  to 

the  prior  mortgagee 240-242 

Benefit  to  gi-antor  of  such  an  assumption 240,  241 

Rights  of  parties  in  such  an  assumption 240-242 

Grantor  caimot  i-elease  grantee  from  liability  on  assumption 243-246 

See  Grantkk  on  this  point. 

Attaching  Creditor. 

Of  moi'tgaged  premises,  necessary  defendant 148 

B. 
Bankruptcy. — See  Assi^inke  in  Bankruptcy. 


272  CESTUIS    QUE    TRUST. 

Beueflciaries. — See  Cestdis  que  trust. 

Bond.— See  Note.  page. 

Assig-nee  of,  without  mortgage,  may  foreclose 41,     45 

Mortgage  executed  without,  creates  no  pei*sonal  liability 43 

Assignee  of,  without  mortgage,  may  execute  a  valid  discharge. 44 

Assignor  of  bond  without  mortgage  a  necessary  party 44,     45 

Person  signing  bond,  but  not  mortgage,  liable  for  deficiency,  75,  205,  206 

All  persons  signing  bond  or  note  liable  for  deficiency 205,  206 

Husband  signing  wife's  bond  and  mortgage  liable 205,  206 

Lial)ility  on  bond  can  be  enforced  in  action  at  law 206 

c. 

Cestiiis  Que  Trust. 

Should  be  defendants  to  a  foreclosure  by  their  trustee.. 62,  64,  183,  184 

May  be  omitted  if  very  numerous 62.  64,  183 

Complaint  should  state  that  they  are  too  numerous 62,  63,     64 

Always  omitted  in  foreclosure  of  railroad  mortgages 63 

.Bondholders  not  necessary  parties,  but  may  interplead 63 

Mortgage  for  their  benefit  may  sometimes  be  foi-eclosed  in  their 

own  names 64,  183,  184 

Trustees  necessary  parties  in  such  cases 64,  183,  184 

Trustees  and  beneficiaries  may  unite  as  co-plaintiffs 64,  183 

See  Beneficiaries,  Trustees.  * 

Of  mortgaged  premises,  necessary  defendants . . .  .• 120,  124 

Under  a  will  or  trust   deed  of  mortgaged  premises  necessary  de- 
fendants  120,  124 

Not  necessary  whei-e   the  premises  ai-e  converted  into  personalty 

under  the  tei-ms  of  a  will 120?i 

Character  of  trust  should  appear  in  the  will  or  deed 121 

If  names  of  beneficiaries  not  stated  in  the  will  or  deed,  not  necessary 

parties 121 

Two  exceptions  to  the  general  rule 121,  122 

jB^rst,  In  cases  of  i-emote  limitations a.  121,  122 

Sufficient  to  make  persons  in  esse  defendants 121,   122 

Second,  Where  beneficiaries  are  very  numerous 122 

Would  be  ojipi-essive  to  make  all  defendants 122 

"Sufficient  to  make  trustees  defendants 122,  123 

Necessary  defendants  even  where  trustee  executes  the  mortgage,  123,  124 

Beneficiaries  hold  the  legal  estate  in  the  premises 123,   124 

Trustees  hold  the  title  merely 123,  124 

Collateral  Securities. 

Assignee  may  enforce  what  his  assignor  holds 17 

Mortgage  assigned  collaterally,  who  may  foreclose 28,  31,  176-179 

See  Assignee,  Mortgagee. 


COMPLAINT,  DECREE.  273 

Collateral  i^iecurities—coiitbmed.  page. 

Who  necessary  parties 28,  31,  176-179 

Deed  as  collateral,  mortgagor  still  a  necessary  defendant 85 

Complaint. 

Dismissed  if  mortgagee  forecloses  in  behalf  of  his  assignee 11 

By  collateral  mortgagee  or  assignee,  refusal  to  become  co-plaintiff 

should  appear  in 29 

The  fact  of  collateral  assignment  should  appear 31 

Cause  of  action  for  deficiency  must  be  fully  stated 194 

Demand  for  decree  must  be  clear  and  specific 195 

Should  state  order  of  liability  of  the  diflferent  defendants 195 

No  demand  for  deficiency  made  in,  judgment  for,  cannot  be  taken. .  195 

Must  state  grounds  on  which  judgment  for  deficiency  is  demanded,  213 

Contemporaneovis  Mortgages.— See  Simultaneous. 

Co-plaintiflfs. 

Refusal  to  become,  should  be  alleged  in  complaint 19,  22,  24,     29 

32,  46,  51,  176,  179 

Mortgagee  and  assignee  collaterally  may  unite  as 29,  30,  176,  179 

Contemporaneous  mortgagees  may  unite  as 45,     47 

Parties   interested  in  mortgage,  refusing  to  unite  as  co-plaintiffs, 
necessary  defendants 69,  171 

Corporations. 

0\vning  mortgaged  premises  necessary  defendant 132,  133 

How  authorized  to  execute  mortgages 133  and  n 

Curtesy. — See  Husband. 

D. 
Decree. 

Foi-eclbsing  a  mortgage  in  severalty,  to  iiay  to  each  his  share ...  22,  23 
Foreclosing  a  mortgage  collaterally  assigned,  should  direct  payment 

to  pledgee  first,  and  balance  to  mortgagee 29 

Should  first  direct  payment  of  costs  and  expenses  of  sale 196 

Then  payment  of  taxes,  water  rates,  etc 196 

Application  of  balance  to  mortgage  debt 196 

The  balance  then  remaining  unpaid  will  be  the  deficiency 196 

Should  fix  order  of  liability  of  the  principal  and  sureties   for  the 

debt  196,  197 

Form  of,  for  directing  judgment  of  deficiency 197,  198 

Must  follow  the  demand  for  judgment  in  the  complaint 198 

Should  specify  the  order  of  liability  of  all  guaranteeing  mortgage,  250 

18 


274  DOWER. 

Deed.  page. 

To  grantee,  unrecorded,  mortg-agor  a  necessary  party 75,  85,     90 

As  a  security,  mortgagor  still  necessary 85 

See  Lis  Pendens. 

Defendants. 

Persons  interested  in  mortgage  debt  i-efusing  to  become  co-plaintiflFs, 

may  be  made 33 

Who  are  necessai-y  ;  general  principles 72 

Defense. 

Pleaded  against  assignor   of  mortgage,    renders  him  a  necessary 

defendant 15 

Practice  of  giving  assignor  notice  to  defend 15,  175 

Deficiency,  Judgment  of. — See  Jddgmbnt  of  Deficiency. 

Cannot  be  recovered  in  foreclosing  mortgage  executed  on  incompe- 
tent person's  land  under  order  of  court 1307i 

Devisees. 

Of  mortgagor  or  owner  necessary  parties,  instead  of  heirs,  113,  114,  115 

Heirs  and  devisees  both  necessary  pai-ties  until  will  proved 115 

See  Heir. 

Divided  Premises. — See  Undivided  Premises. 

Dower. — See  Wife. 

Wife  must  be  party  to  extinguish  it 100 

Not  affected  unless  wife  a  defendant 100 

Bequest  made  in  lieu  of,  widow  not  a  necessary  defendant 105 

Where  abolished  by  statute,  wife  not  a  necessary  defendant 108 

E. 
Easement. 

Owner  of,  a  necessary  defendant 89,     90 

Hjectnient. 

Wife  or  widow  cannot  maintain,  if  omitted  as  a  party 105 

Equitable  Assignee. 

Of  moi'tgage,  one  who  pays  it  for  another,  is 36 

Equitable  Interest. 

Owner  of.  in  mortgage,  may  foreclose 32 

Owner  of,  in  moi-tgaged  premises,  a  necessary  defendant 81,     85 

Escrovt^. 

Deed  of  mortgaged  jiremises  delivered  in,  mortgagor  a  necessary 
defendant 85 


FORECLOSURE.  275 

Execution.                                                                                       page. 
Equity  of  redemption  sold  on,  mortgagor  still  a  necessary  party, 
when 82 

See  Sheriff's  Sale. 

Executor. — See  Personal  Representatives. 

Co-executor  may  foreclose  against  co-executor 33,     34 

Of  mortgagor  generally  not  a  necessary  defendant 113,  116,  118 

F. 
Foreclosure. 

Methods  of 2,       3 

Parties  to,  generally 3,       4 

Result  of,  upon  pai-ties 5,       6 

There  may  be  a  second,  if  first  foreclosure  vacated 11 

By  pretended  assignee,  void 13 

By  moi'tgagee  after  assignment,  void 12 

Void,  if  assignment  made  by  a  married  woman  alone  in  Pennsyl- 
vania ;  husband  should  join 13 

De  novo,  may  be  maintained  to  cut  off  omitted  lienors 34 

By  U.  S.  Loan  Commissioners,  when  void 35 

Two  mortgages  on  the  same  land  cannot  be  foreclosed  at  the  same 

time  in  sepai-ate  actions 47 

If  two  actions  have  been  commenced,  one  must  be  discontinued 47 

See  Action. 

Effect  of  sale  by  foreclosure  171 

Does  not  extinguish  the  debt 188 

Formerly  only  an  action  in  rein 189 

Judgment  for  deficiency  may  now  be  recovered  in 192,  194 

Foreclosure  by  Advertisement. 

Who  necessary  parties 75 

A  nullity,  if  the  owner  is  not  served  witii  a  notice 88?i,  90 

Personal  representatives  of  the  mortgagor  or  owner  necessary  de- 
fendants  Ill,  113,  118 

Cannot  be  commenced  until  personal  representatives  have   been 

appointed 118 

Subsequent  mortgagees  necessary  defendants 141 

Judgment  creditors  necessary  defendants 145,  146 

Foreign  Personal  Kepresentatives. 

Cannot  ordinarily  foreclose 57,  61 

See  Personal  Representatives. 

Payment  of  mortgage  debt  to,  cancels  the  lien 60 

Can  make  a  valid  assignment  of  the  mortgage 59,  60 

Domestic  administrator  has  preference  over  foreign 60 

Foreign  administrator  may  foi-eclose  by  advertisement 61 


276  GRANTEE. 

Fraud.  page. 

Deed  of  nioi'tgaged  premises  made  in  fraud,  moi-tgagor  remains  a 
necessary  defendant 85 

G. 
Grantee- 

Cannot  object  if  the  mortgagor  is  not  made  a  party 77 

Taking  premises  subject  to  mortgage,  not  liable  for  deficiency,  224,  227 

Deed  merely  reciting  mortgage,  creates  no  liability 224 

Deed  reciting,  "  subject  to  mortgage  " 224 

Effect  of  that  clause  on  grantee 225 

A  judicial  sale  made  subject  to  mortgage,  no  liability  thrown  on 

purchaser 225 

Deed  reciting  mortgage  as  part  of  consideration,  creates  no  liability,  225 

226 
Rule  diiferent  in    New  Jei'sey  ;  if  the  mortgage  foi-ms  part  of  the 

consideration,  the  grantee  will  be  liable 226 

Tendency  of  New  York  courts  toward  New  Jersey  rule 227 

Intention  of  i^arties  to  assume  or  not,  always  prevails 227,  233 

Assuming  payment  of  mortgage,  liable  for  deficiency   228,  235 

See  Assumption  of  Mortgage. 
Under  the  assumption  of  a  mortgage,  becomes  principal  debtor,  229,  230 

Mortgage  debt  becomes  his  own 229,  230 

May  be  sued  by  grantor  on  assumption 230 

Measure  of  damages,  unpaid  amount  of  mortgage 230 

Need  not  sign  deed  to  bind  himself. 233 

Acceptance  of  deed  sufficient 227,  233 

Intention  to  assume,  the  essential  thing 232,  233 

Assumption  clause  inserted  in  unusual  place  or  fraudulently..  .233,  234 

Not  liable  if  deed  merely  to  ti-ansfer  title 234 

Failure  of  title  held  a  good  defense  to  the  assumption 235 

Cannot  plead  usury  or  other  defenses  against  the  mortgage  . . .  235,  236 
Theories  of  law  on  which  mortgagee  may  enforce  assumption . .  236,  237 
Not  personally  liable  on  assumption,  if  his  grantor  not  lial^le . .  238,  240 
A  break  in   the  line  of   successive   assumptions  will  release  the 

grantee  from  all  liability 238,  239 

Above-mentioned  theories  applied.  ...    238,  239 

Grantee  released  from  assumption   for  the  i-eason  that  there  is  no 

consideration  to  sustain  it 239 

In  Pennsylvania  this  I'ule  does  not  apply 239,  240 

Grantee  assuming  payment,  liable,  though  his  grantor  not  liable,  239,  240 

Cannot  be  i-eleased  from  assumption  by  gi-antor 243,  246 

Unless  assumption  was  conditional 244 

Theories  and  reasons  for  rule 240,  245 


GRANTOR.  277 

Grantee — continued.  page. 

In  New  Jersey  grantee  can  be  released,  if  not  fraudulently , , . .  245,  246 
See  Grantor. 

Intermediate  grantee,  having  assumed  payment,  liable 247,  248 

Line  of  successive  assumptions  must  be  complete 247,  248 

Intermediate  gi-antee  not  assuming-  payment,  not  lial)le 248 

Grantee  assuming  payment,  deceased,  his  estate  liable, 254 

Personal  representatives  proper  parties.     See  §§  9S,  99 254 

See  Owner. 
Grantor. 

Paying-  a  mortgage  assumed  by  his  grantee,  hel<i  subrogated  to 

rights  of  moi-tgagee 36 

See  Surety,  Owner,  Purchaser. 
Under  contract  of  assumption  by  grantee,  lieeomes  a  mere  surety. .   229 

Remedy  of  grantor  to  enforce  assumption 229 

May  sue  grantee  on  assumption 230 

Measure  of  damages,  unpaid  amount  of  mortgage 230 

■  Discharged  of  liability  as  surety  by  variation  of  bond  and  mortgage,  231 

See  Assumption  of  Mortgage. 
Rights  of,  in  contract  of  assumption  of  pi-ior  moi-tgage    by   sub- 
sequent mortgagee 240,  242 

"^    Subsequent  mortgagee  assuming,  liable  to  grantor  alone 240,  241 

Cannot  release  grantee  from  liability  on  assumption 243,  246 

Reasons  why  he  cannot 243,  245 

If  the  assumption    was   conditional   or   conting-ent  in   any  way,  a 

release  may  be  given 244 

Theories  of  subrogation,  etc.,  applied 244,  245 

In  New  Jersey,  a  release  may  be  given  if  it  is  not  fraudulent. .  .245,  246 

Insolvent  grantor  cannot  release 245 

Grantor  re-i^urchasing  and  re-assuming,  discharges  grantee  from 
liability 246 

Guarantor. 

Of  Jhoiid  and  mortgage  at  its  inception,  liable  for  a  deficiency 207 

May  be  made  a  party  to  foreclosure 207 

Assignor  guaranteeing  payment  of  mortgage  a  necessary  defendant 

foi-  a  judgment^'of  deficiency 248,  250 

Order  of  lial>ility  and  the  decree 249,  250 

Intermediate  assignoi-s  guai-anteeing  payment,  liable 250,  251 

All  jiersons  guaranteeing  payment  oi-  collection  by  a  sepai-ate  instru- 
ment, liable 250,  252 

Giiaranty_[of  payment  and  of  collection,  distinction 249 

Guardian. — See  Okkicial  Capacity. 

Of  infant  heir  of  mortgagor  not  a  necessary  <lefendant Ill,  112 

Summons  must  l)t)  served  on  guardian Ill,  112 


278  HEIRS. 

Gruardiajl— continued.  page. 

Of  incompetent  person  a  necessary  defendant 130,  131 

See  Incompetent  Person. 
Of  incompetent  jierson,  holding  subsequent  mortgage  or  lien,  a  neces- 
sary party 166 

H. 
Heirs. 

Of  mortgagee  cannot  foi-eclose  a  mortgage 53-55 

Not  necessary  parties  to  the  action  in  any  way 51 

Of  vendor  in  land  contract,  when  necessaiy  parties 53 

Of  mortgagee,  when  allowed  to  foreclose,  if  no  personal  representa- 
tive has  been  apiiointed 54 

Cannot  make  valid  assignment  of  mortgage 54 

Have  been  held  necessaiy  defendants  in  an  action  to  redeem  Trom 

the  mortgage 54 

Of  mortgagor,  no  longer  owning  the  pi-emises,  not  necessary 76 

Of  deceased  joint  mortgagor  not  necessary 81,  114 

Advisable  parties,  however 81 

Of  moi'tgagor  or  owner,  necessary  defendants 110-114 

They  succeed  to  decedent's  rights 110,  111 

Infant  heirs  neeessary Ill 

Widow,  an  heir  by  statute  in  Indiana llln 

Sale  held  void  for  omission  of  heirs llln 

Necessary  parties  in  Missouri  by  statute IIIti 

Heirs  of  a  sub-vendee  necessary  defendants  in  the  foreclosure  of 

aland  contract llln 

Necessary  defendants  in  reviving  a  foreclosiu-e  commenced  against 

a  deceased  mortgagor 112 

Not  sufficient  to  i-evive  against  personal  representatives 112 

See  Persoxal  Rbprbsentatives. 

Not  necessary,  if  the  owner  sold  the  jiremises  in  his  life-time 112 

If  owner  holds  any  equitable  interest  at  death,  heirs  necessary. . .  .    112 
Not  necessary  parties  where  the  real  estate  passes  by  law  to  the 

personal  representatives 113 

If  omitted,  any  interested  party  may  object  by  demurer  or  answer,  113 
Not  necessary  parties  where  premises  devised  by  will....  113,  114,  115 

Proper  parties,  as  the  will  may  be  impeached 113,  114,  115 

Of  deceased  joint  owner  not  necessary 81,  114 

Pi'oper  and  advisable  defendants,  however 114 

Doctrine  of  survivorship  applied 114 

Not  necessary  parties  to  a  foreclosure  by  advertisement 118 

Of  a  trustee,  not  necessary  parties 1197i 

Necessary  defendants  if  mortgage  executed  by  order  of  court  to 
pay  decedents'  debts 132 


HUSBAND. 


279 


Heirs — continued.  page. 

Of  subsequent  inortgag-ee  or  lienor,  not  necessary  parties. 162-164 

Of  deceased  obligor,  not  jiroper  parties  wbere  a  judgment  of  defi- 
ciency is  sought  against  his  estate 218-220 

Proper  parties,  however,  for  that  purpose,  if  the  personal  prop- 
erty is  insufficient  to  pay  decedent's  debts 220 

Husband. 

Must  sign  mortgage  with  wife  in  Pennsylvania 13 

May  take  valid  assignment  of  mortgage  on  wife's  land 13 

"Wife  may  take  assignment  of  mortgage  on  husband's  land 13 

Mortgage  made  to  husband  and  wife  jointly 21 

See  Makried  Woman,  Wife. 
In  some  states  a  necessary  defendant  to  the  foreclosure  of  a  mortgage 

on  his  wife's  seiiarate  estate 99 

Generally  not  a  necessary  defendant  if  wife  owns  premises. .  ..109,  110 

Upon  wife's  death,  may  become  a  necessary  defendant 109,  110 

Four  requisites  :  mai-i-iage,  seisin,  issue,  and  death  of  wife  intestate,  109 
Where  curtesy  abolished  by  statute,  husband  never  necessary....  110 
Signing  wife's  bond,  liable  for  deficiency 205,  206 

I. 

Incompetent  Persons. 

Owning  mortgaged  premises,  necessary   defendants  in  their  own 

names 129,  131 

Their  lands  may  be  mortgaged  by  proceedings  in  court 129,  130 

Necessary  defendants  to  the  foreclosure  of  such  mortgages 130 

Guardian  or  committee  executing  mortgage  under  order  of  court 

a  necessary  defendant 130 

Effect  of  such  a  mortgage  stated  by  N.  Y.  Code 130 

Bond  not  necessary  with  such  a  mortgage 1307j 

Fact  of  incompetency  must  be  alleged  in  complaint 131 

Holding  a  subsequent  mortgage^or  lien,  a  necessary  party 166 

Indemnifying  Mortgage. 

Assignee  of,  may  foreclose 12?! 

See  Surety. 

Infant. — See  Incompetent  Persons. 

Necessary  defendant  in  his  own  name 129,  131 

Mortgage  executed  by,  premises  sold  by  him  when  of  age,  subject  to 
the  mortgage,  held  valid 130» 

Interest  Clause. 

Rendering  sevei-al  notes  or  installments  due  at  the  same  time 26 


280  JUDGMENT    CREDITORS. 

Introduction.                                                                                    page. 
Foreclosures  generally  considered 1-6 

J. 
Joint  Mortgagees. 

Any  one  or  moi-e  may  foreclose 17,   ISO,  181 

May  unite  as  co-plaintiffs 17,  180,  181 

Joint  foreclosure  allowed  where  mortgage  secures  debts  in  severalty,  18 
All  persons  interested  in  the  mortgage  necessai-y  parties  iilaintiff 

or  defendant 18,  180,  181 

Must  be  requested  to  join  as  co-plaintiff  before  made  a  defendant,  18,  180 

Refusing  to  become  co-plaintiffs,  necessary  defendants 18,  180,  181 

Acting  in  an  official  or  representative  capacity  as  co-executoi's..l8,  19 
See  Partners. 

One  dying,  doctrine  of  survivorship 20,  67,  181 

Survivors  can  foreclose  without  bringing  in  the  personal  i-epresenta- 

tives  or  heirs 20,  21,  67,  181 

They  are  proper  parties,  however 21 

Personal  representatives  may  unite  as  co-plaintiffs 21 

Mortgage  to  husband  and  wife,  one  dying 181,  182 

Joint  Mortgagor. 

Heirs  of  one  dying,  not  necessary  parties 81,  114 

Personal  representatives  of,  proper  parties  in  seeking  judgment  of 

deficiency 114 

Otherwise  not  necessary  defendants 116a 

Judgment  Creditors. 

Necessary  defendants  to  a  foreclosure 144,  151 

Judgment  must  be  docketed  before  foreclo-sure  commenced  to  be  a 

lien 145,  147 

Cannot  be  made  co-plaintiffs 145,  147 

Proper  parties  only  in  some  states.    145 

Holding  judgments  against  owner  of  life  estate  in  mortgaged  lands, 

necessary 146,  147 

If  premises  acquired  after  the  judgment  is  docketed,  the  judgment 

becomes  a  lien 146,  147 

Subsequent  to  a  purchase-money  mortgage 146,  147 

Judgments  perfected  after  mortgagor  makes  a  general  assignment, 

judgment  creditors  not  necessary  parties 147 

Ci-editors  at  large  not  proper  parties 147 

Owners  of  equitable  decrees  and  orders  treated  the  same  as  money- 
judgment  creditors 147,  148 

Having  levied  an  execution,   remains  a  necessary  party   till  the 
judgment  is  satisfied  in  full 148 


JUDGMENT    OF    DEFICIENCY.  281 

Juclgnient  Creditors— conthmed.  page. 

Attaching  creditor  a  necessary  jiarty 148 

Judgment  docketed  pending  foreclosure,  creditor  not  necessary 148 

If  omitted,  any  interested  party  may  object  by  demurrei-  oi-  answer,  148 

If  omitted,  his  only  remedy  is  to  redeem 149 

How  redemption  may  be  made 149-151 

What  must  be  paid  to  redeem 151 

Lien  by  judgment  need  not  be  specific  to  redeem 150 

If  omitted,  not  bound  by  the  decree  of  foreclosure 150 

Utterly  void  as  to  liim 150 

Having  assigned  the  judgment,  not  a  necessary  jiarty 152-155 

Assignee  of  the  judgment  a  necessary  party 153-156,  157 

Heirs  of,  not  necessary  parties 162-164 

Person'al  representatives  of,  necessary  pai-ties 162-164 

Judgment  of  Deficieucy.— See  Deficiency,  Liability  Personal. 

General  principles  at  common-law 187-192 

General  principles ;  common-law  rule  modified  by  statute 192-194 

May  be  recovered  in  foreclosure 186,  187 

Formerly  recovered  only  in  actions  at  law 1 87,  190 

First  allowed  in  1786 190 

Statutory  modifications  allowing  it  in  foreclosure  actions 192,  194 

New  York  Code  rule 193 

Rule  in  other  states 194 

Rule  in  Uiiited  States  courts 194 

How  the  amount  of,  ascei-tained 196,  199,  201 

How  order  of  liability  for  mortgage  debt  fixed 196,  197,  250 

Dependent  for  its  terms  upon  the  decree  of  foreclosure 197 

See  Decree. 

Proper  form  of  lieci-ee 1 97,  250 

Must  follow  the  demand  for  judgment  in  the  complaint 198 

Cannot  be  rendered  against  defendant,  unless  he  was  personally 

served  with  the  summons  oi-  has  appeared 199 

Cannot  be  rendered  against  a  non-resident 199 

Service  by  publication  does  not  give  jurisdiction 199 

Cannot  be  directed  where  moi'tgage  debt  not  due 199-201 

Can  be  rendered  only  for  what  is  due 199,  200,  201 

Cannot  be  directed  until  referee  to  sell  has  filed  his  rejiort 200 

Report  of  referee  to  sell  should  state  the  amount  of  deficiency....    200 
Generally  decreed  in  the  order  confirming  the  repoi-t  of  the  referee 

to  sell 200 

Execution  may  issue  before  or  after  confij-mation 200 

Amount  bid  at  the  sale  conclusive  as  to  value  of  premises 200,  201 

Conclusive  for  determining  the  amount   of  deficiency 200,  201 

Mortgagoi-  lialile  for 203,  204 

All  per.sons  signing  bond  or  niiti;  liable  for    205,   206 


282  LAND    CONTRACT,    LEGATEE. 

Judgment  of  Deficiency — coneimied.  page. 

All  persons  g-uaran teeing-  bond  and  mortgage  liable 207 

Married   woman   signing    bond   or   gaaranteeing   payment,    when 

liable 208-213 

Against  estates  of  persons  who  were  liable  in  any  way 214-218 

Personal  representatives  proper  parties 214-218 

Heirs  not  proper  parties 218-220 

Judgment  against  personal  representatives  merely  fixes  amount 216 

Execution  cannot  issue 215 

Judgment  to  be  paid  in  due  course  of  administration 214-218 

If  personal  representatives  not  made  parties,  the  claim  for  deficiency 

can  be  presented  to  them  afterwards 218 

Heii'S  proper  parties   when    there  is  an  insufficiency  of  personal 

property  to  pay  the  decedent's  debts 219,  220 

Assignee  in  banki'uptcy,  etc.,  proper  party  to  fix  amount  of  defi- 
ciency against  bankrupt's  estate 221 

See  Personal  Representatives,  Grantee,  Grantor,  Assumption  of 

MORTGAGK. 

Junior  Mortgagees. — See  Subsequent  Mortgagees. 

L. 
Land. 

Primary  fund  for  payment  of  mortgage 40,  225,  230 

Land  Contract. 

Assignee  of,  may  foreclose 13 

Foreclosure  by  pei-sonal  representatives  of  vendor 53 

Must  tender  a  deed 53 

Or  make  heirs  or  devisees  of  vendor  parties  to  the  action 53 

Vendor  and  vendee  j^arties  to  foreclosure  of  moiigage 75,  88?/, 

Mortgagor  making,  remains  a  necessary  defendant 75,  84 

Latent  Equities. 

Assignee  takes,  subject  to 16,  17?* 

Legatee. 

May  foreclose  where  the  interest  alone  was  bequeathed 33 

May  foi-eclose  if  entitled  to  a  portion  only  of  the  mortgage  fund,  33,  34 

Sole  plaintiflF,  if  mortgage  specifically  bequeathed  to  him 54 

Personal  representatives  even  then  proper  defendants \..  55 

Pei'sonal  i-epresentatives  allowed  to  foreclose  mortgage  specifically 

bequeathed 55 

Foreign  specific  legatee  of  mortg-age  may  foreclose 59 


LIS    PENDENS.  283 

LiCgatee — contiiiued.  page. 

A  necessary  defendant  where  a  will  charges  the  legacy  specifically 

on  mortgaged  premises 115,  116 

If  legacy  made  generally  from  mortgagor's  estate,  legatee  not  a 

necessajy  party 116 

May  become   necessary   if  there   is   an   insufficiency   of  personal 

property  to  pay  legacy 116 

Subsequent  lien  specifically  bequeathed  to,  a  necessary  party.,  163,  164 

Liability,  Personal  for  Deficiency. 

General  princi2:)les 183-187 

General  principles  at  common-law 187-192 

General  principles  ;  common-law  rule  modified  by  statute 192-194 

May  be  enforced  in  foreclosure 186,  187,  192,  194 

Rule  in  New  York  Code 193 

In  other  states 194 

How  order  of,  should  be  fixed  in  the  decree  and  in  the  judgment  for 

deficiency 196,  198,  250 

Must  follow  the  demand  in  the  complaint 198 

Persons  originally  liable,  deceased,  their  estates  liable 214-218 

Personal  representatives  proper  parties 214-218 

Heirs  not  proper  parties  for  that  purpose 218 

See  Judgment  for  Deficiency,  Grantee,  Grantor,  Assumption  op 
Mortgage. 

Lis  Pendens. 

Cuts  off  unrecorded  deed 90,  96,     97 

Grantor  remains  a  necessary  party  if  deed  remains  unrecorded —     90 

Pui'chasei"  pendente  lite  not  necessary 93,     94 

Common-law  docti-ine 95,     96 

History  and  nature  of 95,     96 

Pendente  lite,  nihil  innovetur 96  and  n 

New  York  and  other  state  statutory  pi'ovisions 9(5-98 

When  may  be  filed • 9^,     97 

"When  operative 96,     97 

Cuts  off  all  conveyances  executed  or  recorded  after  it  is  filed,  97, 159,  160 

Purchaser  pendente  lite  may  be  made  a  party 97 

"Who  can  take  advantage  of  omission  to  file 98 

Consequences  if  lis  pendens  is  defective 98 

Void  till  corrected 98 

Notice  to  whom 98 

Not  effective  till  complaint  filed 160 

Cannot  l)e  filed  nunc  pro  time 160 

Lunatics  and  Idiots.— See  Incompetent  Persons. 


284 


MARRIED    WOMAN. 


M. 
Married  Woman.  Ipage. 

May  take  an  assignment  of  a  mortg-age  on  lier  husband's  land 13 

Owning  a  mortgage  may  foreclose  it 66 

Husband  not  a  necessary  party 67 

Mortgage  made  to  her  and  her  husband,  she  may  foreclose  as  sole 

plaintiff  on  his  death  , 67 

Discharge  by  husband  of  mortgage  belonging  to  her,  void 67 

Marriage  of  mortgagee,  feme  sole,  to  mortgagor  does  not  extinguish 

or  merge  the  mortgage 67 

Wife  can  fpreclose  mortgage  against  husband's  land 67 

Assignment  to  her  of  mortgage  on  husband's  land   does  not  dis- 
charge it 67 

See  Hdsband. 

A  mortgagor  having  a  separate  estate  a  necessary  defendant 99 

Husband  of,  a  necessary  defendant  in  some  states 99 

See  Wife. 

Being  a  subsequent  mortgagee,  a  necessary  defendant 161 

Husband  of,  genej-ally  not  a  necessary  party 161 

Wife  of  a  subsequent  mortgagee,  not  a  necessary  party 161 

Signing  bond  or  othei'  obligation,  when  liable,  general  principles. . .   208 

Liable  on  all  contracts  under  the  New  York  act  of  1884 209,  210 

Rule  same  in  Massachusetts  and  England 210 

Liability  on  bond  in  New  York  prior  to  act  of  1884 210-213 

Liability  on  bond  same  as  on  other  contracts 211 

Thi'ee  cases  in  which  she  is  liable 211 

1st.  When  contract  created  in  her  business 211 

2nd.  When  contract  i-elates  to  or  is  for  benefit  of  her  estate 211 

3rd.  When  contract  is  in  writing,  charging  her  seiiarate  estate 211 

This  is  the  law  in  most  states 211,  212 

Moi'tgage  by,  always  valid  to  extent  of  value  of  lands 212 

Reason  for  rule  is  that  she  may  mortgage  her  own  lands 212,  213 

Liability  of,  where  bond  and  mortgage  executed  jointly  with  hus- 
band. .    213 

Liable  if  she  receives  part  on^  of  consideration 213 

Complaint  must  state  grounds  on  which  judgment  against  her  is 

demanded 213 

Liable  for  deficiency  if  mortgage  for  purchase  money 214 

Assuming  payment  of  mortgage  always  liable 252-254 

Not  necessary  to  charge  her  separate  estate  in  writing 252,  253 

If  her  grantor  was  not  liable,  she  will  not  be  liable 252,  253 

Guaranteeing  a  mortgage,  her  liability  governed  by  rules  in  §  97. .    254 

Mechanic's  Lien. 

Ownei"  of,  necessary 151 

S(nnetimes  a  question  whether  lien  is  not  prior  to  mortgage 151,  152 


MORTGAGEE.  285 

Mortg'age.  paue 

Not  canceled  if  foreclosure  vacated  for  ii-regularity 11 

Dischai-ged  by  ei-ror,  may  be  foreclosed 35,     86 

Revived  and  foreclosed  if  dischai-ged  for  a  usurious  or  void  nioi-t- 

gage 35,     36 

Paid  by  mistake,  revived  36 

Assignee  of,  without  bond,  cannot  foreclose 41-43 

Made  to  secure  performance  of  contract,  void  on  rescission  of  the 

conti-act 43 

"Without  a  bond,  a  valid  lien  on  the  land  alone 43 

To  personal  rejiresentatives,  foreclosure  of. 55 

All  i^ersons  interested  in,  necessary  parties  to  foreclosure 169-171 

Ownershiji  of,  doubtful,  all  parties  claiming  rights  necessary. . .  182,  183 

Mortgage  Debt. 

Laud  primary  fund  for  its  payment 186,  187 

Other  sources  and  remedies  for  its  collection 186  ei  seq. 

Mortgagee. 

Sole  owner  may  be  plaintiff 10 

Rule  same  in  statutory  foreclosures 10 

May  foreclose,  though  administrator  of  mortgagor's  estate 11 

May  foreclose  an  annuity  moi-tgage  to  be  paid  in  produce 11 

Having  sold  the  mortgage,  cannot  foreclose 11,     15 

Such  a  foreclosure  will  be  voiil 11,     15 

Cannot  foreclose   in   behalf  of  his   assignee  without   making  the 

assignee  a  party 11,     16 

Allegation  that  action  is  for  benefit  of  assignee,  rule  the  same 16 

May  be  plaintiff  if  assignment  defective 12 

After  valid  assignment,  cannot  be  a  party 12 

In  severalty 22 

See  Severalty. 

Having  assigned  moutgage  collaterally,  may  foreclose 28 

Pledgee  or  assignee  necessary  co-plaintiff'  or  defendant 28,     29 

Refusal  to  become  co-plaintiff  should  appear  in  the  complaint 29 

See  Decree,  Co-plaintiffs,  Simultaneous. 

May  foreclose  a  mortgage  conditioned  for  support  during  life 33 

Dying  —  See   Personal   Representatives,  Heirs,   Devisees,  Sub- 
sequent Mortgagees. 
Prior  mortgagee  foreclosing  must  set  forth  his  junior  claims.  ..143,  144 

Rights  of,  against  grantee  assuming  mortgage 228-235 

Enforced  in  equitable  foreclosure  or  in  action  at  law 228-235 

Notice  of  assumption  not  necessary 234 

Theories  of  law  ai)plicable  to  contract  of  assumption 23(3,  237 

Theory  of  equitable  subrogation 236,  237 

Theory  of  contract  for  benefit  of  third  ]ierson 236,  237 


286  MORTGAGOR. 

Mortgag^ee — conthuted.  page  . 

Cannot  enforce  assumption  against  gi-antee  if  gi-antoi*  not  liable  for 

mortgage  debt 238,  239 

Cannot  enforce  assumption  against  subsequent  mortgagee  assuming 

payment  of  prior  mortgage 240-242 

Effect  of  such  an  assumption 240 

Benefit  of,  to  grantor 240-242 

Mortg'agor. 

Payment  of  a  mortgage  by  one  of  a  number  subrogates  him  to  the 

right  to  foreclose  against  the  othei's 41 

Still  owning  equity  of  redemption,  necessary 73-75 

If  there  are  two  or  more,  all  are  necessary 74 

One  cannot  represent  the  others 74 

Person  signing  note,  but  not  mortgage,  not  necessary , 74 

A  necessary  party  if  his  deed  to  grantee  remains  unrecorded 75 

Having  executed  land  conti-act,  still  a  necessary  party 75,     84 

No  longer  owning  premises,  not  necessary 76-78 

May  intervene  on  his  own  application  to  become  a  defendant..  .76,     77 

Always  a  desirable  defendant,  even  after  selling  premises 77,     78 

Owning  a  divided  or  undivided  part  of  premises,  necessary 78-81 

Being  a  tenant  in  common,  by  descent  or  grant,  necessary 78-81 

See  Undivided  Premises. 
Being  tenants  in  common  or  jointly,  foreclosure  must  be  against  all,     80 

Mortgage  debt  cannot  be  collected  in  part 80 

Continuing  to  own  an  equitable  or  contingent  interest,  necessary. .  .81-85 
Necessary   party  if  premises  sold  on  execution,   till   delivei-y   of 

sheriff's  deed .- 82 

Purchaser  also  a  necessary  defendant 82 

Necessary  if  his  deed  is  unrecorded,  in  esci'ow,  a  collateral  security, 

or  in  fraud So,     90 

Only  necessary  defendant  in  foreclosure  by  scire  facias 87 

Remedy  of,  if  purchase!"  omitted  as  defendant*. 88,     89 

Not  affected  if  omitted  as  a  party 89 

See  Owner,  Heir. 

Right  to  redeem  if  omitted  as  a  party 89 

A  married  woman  owning  a  separate  estate,  necessary 99 

Signing  bond  or  note,  liable  for  deficiency 203,  204 

His  liability  changed  from  principal  to  surety  by  assumption 204 

No  bond  or  note  executed,  not  liable  for  deficiency 204 

Pi-emises  then  the  only  source  for  payment 204 

N. 
Necessary  Parties. 

Definition 71 


OWNER. 


287 


Note.— See  Bond.  page. 

Owner  of  one  of  several,  secured  by  mortgage,  may  foreclose —  14,  23 

Owners  of  other  notes  necessary  parties 24,  27 

Two  owners  of  notes  generally  cannot  unite  as  co-plaintiffs 24 

Note  carries  an  interest  in  the  mortgage  p?'o  tanto 14,  15,  24 

Entitled  to  payment  in  order  of  maturity  in  some  states 24,  25 

In  New  York  and  other  states  pro  rata 26 

Notes  maturing  at  same  time  equal  liens 26 

Default  in  one,  rendering  all  due  ;  interest  clause 26 

Notice  of  Pendency  of  Action.— See  Lis  Pendens. 

0. 
Occupants.  -See  Tenants. 

Official  Capacity. 

Mortgage  made  to  person  in,  may  be  foreclosed  in  his  name  as  such 

officer 55,  61,  65 

Party  equitably  owning  the  fund,  not  a  necessary  party  to  the  action,  65 

Successor  of  officer  may  foreclose  in  his  name  as  such  officer 65 

Held  to  be  equitable  assignee  of  security 65 

His  predecessor  in  office  not  a  necessary  party  to  the  foreclosure. . .  65 

Owner. 

Of  equity  by  grant  or  otherwise  necessary 85-92 

Of  undivided  part  necessary 87 

By  purchase  of  assignee  in  bankruptcy 87 

As  necessary  as  original  mortgagor .-..85,  86 

Held  only  a  proper  party  in  some  courts 87 

Not  affected  if  omitted  as  a  party 89 

Decree  a  nullity  as  to  him 89 

Right  to  redeem 89 

If  omitted,  any  interested  party  may  object  by  demurrer  or  answer,  91 

If  omitted,  need  not  redeem,  already  owner 91 

May  redeem  if  he  wishes 91 

Mesne  owners,  no  longer  owning,  not  necessary 92 

Necessary  if  deeds  unrecorded  or  fraudulent 92 

See  PcRCHASBR,  Heir,  Mortgagor,  Grantee. 

A  mairied  woman  owning  a  separate  estate  necessary 99 

P. 
Paramount  Title. 

Parties  holding,  neither  necessary  noi-  pi-oper  defendants   261,  262 

If  made  parties,  not  bound  by  decree 261,  262 

"Widow  not  having  signed  mortgage,  made  party,  her  rights  not 

affected 262 

See  Adverse  Claimants. 


288  PERSONAL    REPRESENTATIVES. 

Parol.  PAGE. 

Assignment  by,  sufficient  for  foreclosm-e 14 

Parties. 

Generally  considered 1-8 

Effect  of  foreclosure  upon 5,  6 

All  interested  in  the  niortgag-e  debt  necessary 29,  32 

May  be  co-plaintiffs  or  defendants 28-33 

"Who  necessary  and  proper 71 

Not  affected  by  a  foreclosure  unless  a  party 91 

Proper  and  necessary,  definition  of. 71,  137,  138,  187,  203 

All  persons  interested  in  mortg-age  under  foreclosure,  necessary. .169,  171 

Liable  and  not  liable  defined 187 

Partition. — See  Undivided  Premises 79 

Partners. 

Any  one  or  more  may  foreclose 19,  22 

Any  one  refusing  to  be  a  co-plaintiff  may  be  made  a  defendant 19 

Refusal  to  become  a  co-plaintiff  a  prerequisite 19 

Mortgag-e  executed  to  one  for  all,  all  held  necessary 19 

But  if  held  by  one  as  trusteee  for  the  partnership,  rule  different  —  19 

One  pai'tner  dying,  rule  of  survivorship 19,  20 

See  Joint  Mortgagees,  Joint  Mortgagors. 

Personal  Representatives. 

As  joint  mortgagees 18 

One  co-executor  may  sue  another  co-executor  for  foreclosure  - 18 

Of  a  deceased  partner,  unnecessai-y  parties  in  action  brought  by 

survivors 19 

So  of  a  deceased  joint  mortgagee 20,  21 

They  are  proper  parties,  however 21 

Foreclosing  against  each  other 33,  34,  52 

May  foreclose  mortgage  owned  by  decedent 50,  53,  55 

Now  the  uniform  law  in  America. .  ; 50 

Oidy  pai'ties  who  can  foreclose 50 

May  foi-eclose  annuity  mortgage  if  default  in  decedent's  life-time. . .  51 

And  recover  unpaid  annuity 51 

All  should  unite  as  co-plaintiffs 51 

Any  refusing  may  be  made  defendants 51 

All  must  be  made  parties 51 

Mortgagee  djdng  pending  foreclosure,  action  revived  by 52 

Cannot  be  revived  by  heirs 54 

An  executor  being  the  mortgagor,  a  necessary  defendant  personally,  52 

Necessary  defendants  in  action  to  redeem  from  mortgage 54 

Proi^er  defendants  to  foreclosure  by  legatee 54,  55 

May  foi-eclose  mortgage  specifically  bequeathed 55 


*  PERSONAL    REPRESENTATIVES.  289 

Personal  'Representntixes— continued.  page. 

May  foreclose  mortgage,  part  of  which  is  bequeathed 55 

Mortgage  executed  to,  to  secure  assets  of  an  estate 55 

Foreclosure  by  personal  representatives  in  official  capacity 55 

Officdal  character  of  personal  representatives  must  appear   in  the 

complaint 55,     56 

Mortgage  to,  foreclosure  by  successors  in  office 57 

Administrator  of  personal  representatives  cannot  foi*eclose  it 57 

Foreigri  personal  representatives,  when  they  may  foreclose 57-61 

Cannot  ordinarily  maintain  a  foreclosure 57 

Must  procure  letters  of  administration   in  state  whei-e  moi'tgaged 

premises  are  situated 58 

This  rule  may  be  avoided  by  making  assignment  of  mortgage 59 

Assignee  of  foreign  executor  may  foreclose 59 

Foreign  specific  legatee  of  mortgage  may  foreclose 59 

Perfect  record  title  not  produced 59,     60 

Domestic  administrator  has  preference  over  foreign 60 

Objection  that  plaintiff  is  foreign  administrator  may  be  taken  by 

demurrei' 60,     61 

Foreign  administi-ator  may  foreclose  by  advertisement 61 

See  Trustee,  Official  Capacity. 

Of  mortgagor  or  owner  not  necessary Ill,  116,  118 

Necessaj'y  defendants  in  foreclosure  by  advertisement 111,  113,  118 

Of  mortgagor  held  necessary  parties  in  Georgia llln 

And  in  some  other  states llln 

Always  advisable  and  proper  parties 117 

Not  sufficient  to  revive  action  against,  on  death  of  mortgagor 112?i 

Pi-oper  parties  if  deficiency  judgment  sought  against  mortgagoi-'s 

estate 113 

Necessary  parties  if  by  law  the  real  estate  passes  to  ihem  instead 

of  to  the  heirs 113 

Of  mortgagor  necessary  defendants  pending  a  proceeding  in  pro- 
bate court  to  sell  mortgaged  premises  to  pay  debts 116 

Mortgage  executed  by,  to  pay  decedent's  debts,  heirs  and  personal 

representatives  both  necessary  defendants 132 

Of  subsequent  mortgagee  or  lienor,  necessary  parties 162-164 

Of  subsequent  lienor,  action  i-evived  against 164 

If  none  have  been  appointed,  i)laintiff  cannot  safely  rely  on  making 

only  the  heirs  parties    164 

Proper  parties,  whei-e  judgment  for  deficiency  sought  against  estate 

of  deceased  obligors 214-218 

Judgment  will  be  for  payment  in  due  course  of  administration . .  214,  215 

Execution  cannot  issue  against  personal  rejiresentatives 212 

Pi-actice  in  other  states  than  New  Yoi-k 214,  215  and  n 

Judgment  of  deficiency  does  little  more  than  fix  amount  of  deficiency,  216 

19 


290  PLAINTIFF.  „ 

Personal  Representatives— co7iii7i?iecZ.  page. 

Not  made  j)arties,  claim  for  deficiency  can  be  presented  to  them 

later 218 

Of  deceased  grantee  who  assumed  payment  of  mortgage,  proper 

parties  for  judgment  of  deficiency 254 

Rule  same  for  guarantors  of  mortgage 254 

Plaintiff. 

Inti'oductory  ;  who  may  generally  be 8-10 

Sole  mortgagee  may  be  10 

Rule  the  same  in  statutory  foi-eclosures 10 

Mortgagee  may  be  plaintiff,  though  administrator  of  the  mortgagor's 

estate 11 

Mortgagee  having  assigned  mortgage  cannot  be 11 

Such  a  foreclosure  void 11 

Owner  of  equitable  interest  of  any  kind  in  mortgage  may  be 32 

Must  always  be  a  real  party  in  interest 32 

All  persons  interested  in  the  mortgage  debt  are  best  united  as  co- 
plaintiffs 32 

No  one  can  be  made  a  i>laintiff  against  his  will 33 

A  legatee  may  be  plaintiff 33 

Person  advancing  money  to  pay  existing  mortgage  may  foreclose 

as  equitable  assignee 35 

See  SuRKTY,  Personal  Representatives. 
Parties  interested  in  mortgage,  not  co-plaintiffs,  necessary  defend- 
ants  169-171 

Pledgee  of  Mortgage. — See  Assignee,  Mortgagee. 

Necessary  party  plaintiff  or  defendant 28,     29 

Practice. 

Points  in  ;  complaint 194,  195 

See  Complaint. 

Decree  of  foreclosure 196,  199 

Should  specify  order  of  liability  of  parties 250 

See  Decree. 

Judgment  for  deficiency 199-201 

See  Judgment  for  Deficiency. 

Primary  liability 200,  201 

Principal — See  Surety. 

Gi-antee  and  grantor  in  assumption  of  mortgage  hold  I'elation  of,  to 

each  other 230,  231 

See  Grantor,  Grantee. 
Grantor  discharged  as  siu-ety  by  variation  of  bond  and  mortgage. . .   231 


PRIOR   INCUMBRANCERS,    PURCHASER.  291 

Prior  Incumbrancers.  page. 

Not  proper  defendants  generally 256-259 

General  practice  to  sell  sul)ject  to 257 

Proceeds  of  sale  cannot  generally  be  applied  to  payment  of. 257 

Rights  of,  not  affected  if  made  parties 257,  258 

If  dies  pending  foreclosure  of  junior  mortgage,  action  need  not  be 

revived  against  his  personal  representatives 258 

Party  owning  mortgages,  prior  and  subsequent  to  mortgage  under 

foreclosure,  may  have  both  paid  from  proceeds  of  sale 258 

If  made  parties  improperly,  general  practice  is  to  dismiss  action  as 

to  them 258,  259 

When  they  can  properly  be  made  defemlants 259,  260 

To  have  amount  of  their  claims  ascertained 259 

When  their  claims  may  be  j^aid  from  pi-oceeds  of  sale 259,  260 

Must  express  their  willingness  to  have  payment  made 259,  260 

Incumbrance  must  be  due  and  payable 259,  260 

English  rule  and  practice  adopted  in  some  states 260,  261 

In  Indiana,  prior  incumbrancer  a  propel*  party 261 

Bound  by  the  decj'ee  in  Indiana 261 

Foreclosing  must  set  forth  in  complaint  his  junior  claims 143,  144 

Not  affected  by  Us  j^endens 98 

Prior  Mortgagees. — See  Prior  Incumbrancers. 

Proper  Parties. 

Definition 71,  137,  138 

Purchase-money  Mortgage.— See  Wife. 

Purchaser. 

At  foreclosure  sale,  an  equitable  assignee  of  mortgage  if  title  defect- 
ive   34,  35, -88,  151 

Of  equity  at  sheriff's  sale  on  execution  necessary 82,  83 

Of  equity  at  sheriff's  sale,  pending  foreclosure,  not  necessary 83 

Under  land  contract  necessary 84 

See  Land  Contract. 

Of  equity  of  mortgagor  necessary 85,  92 

See  Owner. 

Not  a  pi'oper  party  in  foreclosure  by  scire  facias 87 

Held  only  a  proi^er  i?arty  in  some  courts 87 

At  foreclosure  sale  acquires  no  title  unless    owner  of  equity  was 

a  defendant 88,  91 

Remains  a  stranger  to  title 88,  91 

Sale  not  void 88 

Intermediate  purchasers,  no  longer  owners,  not  necessary 92 

Pendente  lite  not  necessary 93,  94 

Assignee  and  attaching  creditor  pendevte  lite  not  necessary 93 


292  REDEMPTION,    REMAINDERMEN. 

Piii'Cliaser — continued.  page. 

Purchaser  pendente  lite  has  same  i-ights  only  as  his  grantor 93,     94 

Purchaser  pendente  lite  may  appear  if  he  wishes 94 

May  be  made  a  defendant 97 

See  Lis  Pendens. 

At  foreclosure  sale  relieved  of  bid  if  title  defective 134,  140,  146 

See  Grantee. 
Receiving  premises  subject  to  mortgage,  not  liable  foi-  deficiency,  224-227 

Assuming  payment,  liable 228-235 

Intermediate  purchasers  assuming  payment  of  mortgage  liable  for 

deficiency 247,  248 

See  Grantee,  Owner. 

R. 

Receiver  of  a  Corporation. — See  Assignee  in  Bankruptcy. 

May  foreclose  a  mortgage 49,     65 

Owner  of  mortgaged  premises  a  necessary  defendant 127 

Being  a  subsequent  mortgagee  or  lienor,  a  necessary  party 165,  166 

Redeem,  Redeiuption. 

Right  of  omitted  mortgagor  or  owner  to 89 

Right  of  omitted  Avife  or  widow  to 105 

Right  of  omitted  subsequent  mortgagee  to 141,  142 

Right  of  omitted  judgment  creditor  to 149-151 

Remaindermen  and  Reversioners. 

Of  mortgaged  pi-emises  necessary  defendants 124-127 

All  persons  ha\'ing  future  and  contingent  interests  not  indispensable 

parties 124 

It  is  sufficient  to  make  owner  of  first  vested  estate  defendant. . .  124,  125 

And  the  owners  of  intermediate  estates  defendants 124,  125,  126 

There  must  be  a  defendant  who  is  in  esse 126 

And  who  holds  a  vested  estate  of  inheritance 126 

Advisable  to  make  the  remotest  remainderman,  if  he  is  in  esse,  a 

defendant 127 

s. 

Scire  Facias. 

Foreclosure  by,  must  be  in  name  of  moi'tgagee 16 

Mortgagor  and    his   personal   representatives   the   only   necessary 

defendants 87 

Held  sufficient  to  make   either  heirs  or  personal  representatives 

parties IIItj. 

Secondary  or  Subsequent  Liiability. 

How  created 223 


SUBSEQUENT    INCUMBRANCERS.  293 

Severalty.  iaoe. 

Mortgage  to  secure  debts  in  severalty  foreclosed  in  joint  action,  18,  180 

181 
See  Undivided  Premises,  Joint  Mortgagees. 

Mortgagees  in  severalty,  any  one  may  foreclose. .    22,  180 

Others  refusing  to  become  co-plaintiffs,  necessary  defendants.  .  .22,  180 

All  the  mortgagees  are  necessary  parties 22,  180 

One  dying,  his  personal  representatives  necessary  pai-ties 22,  181 

Decree  should  be  to  pay  to  each  his  share 22 

Several  notes  given  secured  by  one  moi-tgage 24,  26,  180 

See  Note. 

Sheriff's  Sale.— See  Execdtion. 

Purchaser  at,  necessary  party  to  foreclosure 82,  83,     89 

Purchaser  at,  pending  foreclosure,  not  necessary 83,     89 

Simultaneous  Mortgages. 

Mortgagees  may  unite  as  co-plaintiffs  or  not 23,  45,  47,  182 

One  may  foreclose,  making  others  defendants 45,  47,  182 

Treated  as  if  one  mortgage 23,  46,  182 

See  Note. 
Several  notes  given  secured  by  one  mortgage,  rule  as  to  payment,  24,     27 

Maturing  at  different  times,  entitled  to  payment  pro  rata 27 

All  owners  of,  necessary  parties 45,     46 

Strict  Foreclosure. 

Who  necessary  parties  in 75 

Subject  to  Mortgage. — See  Grantee. 

Subrogation.— See  Surety. 

Equivalent  to  assignment 37-41 

Theory  of,  applied  to  contract  of  assumption 236,  237 

Subsequent  Incumbrancers. 

Cut  off  by  second  foreclosure 34 

As  surety  for  prior  mortgage - 40 

See  Surety. 

May  sometimes  compel  foreclosure  of  prior  mortgage 40 

Generally  necessary  defendants 137-139 

Introductory  section  on 137-139 

Rights  acquired  by,  in  mortgaged  pi-emises 138,  139 

Rights  not  affected  if  omitted  as  defendants 139 

Action  to  foi-eclose  will  not  be  dismissed  if  omitted 139 

Prior   and   subsequent   incumbrancers   may    be   made   parties   in 

Maryland 145 

Assignee  of,  pendente  lite,  not  necessary 157,  158 

PeJidente  lite,  not  necessary  parties 160,  159 


294  SUBSEQUENT    MORTGAGEES. 

Subsequent  lnc\inibra,ncers— continued.  pasb. 

May  become  party  on  his  own  application 159,  160 

LL<!  pendens  must  be  filed  before  incumbrance  perfected  on  record,  159 

160 

Heirs  of,  not  necessary  parties 162-164 

Personal  representatives  of,  necessary  parties 162-164 

Claiming  priority  of  lien  over  mortgage,  necessary  defendants.. 264-266 
Question  of  priority  may  be  litigated  in  foreclosure 264-266 

Subsequent  Judginent  Creditors.— See  Judgment  Creditors. 

Subsequent  Mortgagees. 

Still  owning  mortgage,  necessary  defendants 131-144 

Action  can  be  sustained  without  them ;  defective  title  produced,  139,  140 

If  omitted  as  parties,  their  rights  not  affected  by  the  action 140,  141 

Held  not  necessary  defendants  to  foreclosure  by  scire  facias 140» 

Trustee  for  numerous  bondholders,  trustee  alone  necessary  party..  141 

If  omitted  as  party,  his  remedy  is  to  redeem 141 

Redemption  must  be  within  ten  years 14J 

In  redemption  an  accounting  of  rents  and  profits  can  be  had 141 

Will  be  obliged  to  pay  only  mortgage  debt  and  interest  without 

costs 141,  142 

When  selling  price  of  property  the  amount  to  be  paid  to  redeem. . .  142 
If  omitted  as   a  party,   may  also   foreclose   his  junior  mortgage 

instead  of  redeeming 142,  143 

If  omitted,  may  be  subsequently  cut  off  by  strict  foreclosure 143 

Foreclosing  a  prior  mortgage  must  set  forth  in  the  complaint  his 

junior  mortgage,  or  it  will  be  cut  off 143,  144 

Cannot  compel  premises  to  be  sold  subject  to  junior  mortgage. .  143,  144 
If  he  has  released  the  mortgaged  pi-emises  from  his  mortgage,  he  will 

no  longer  be  a  necessary  defendant 144 

Having  assigned  his  mortgage,  no  longer  a  necessary  party 152-154 

Assignee  of,  a  necessary  party 153-156,  157 

Having  been  paid  in  full,  not  a  necessary  party 153 

Holding  any  equitable  interest  in  mortgage  conditionally  or  collater- 
ally, necessary 154 

Being  a  part  or  joint  owner,  necessary 154,  155 

Collateral  or  conditional  assignee  necessary 154,  155 

Notice  of  collateral  or  conditional  nature  of  assignment  must  be 

given  plaintiff 154,  155 

Assignee  of,  pendente  lite,  not  necessary 157,  158 

If  subsequent  mortgage  not  recorded,  &  lis  pendens  will  cut  it  off, 

though  moi'tgagee  not  made  a  party 160 

Being  a  married  woman  does  not  alter  the  rule ;  a  necessary  party,  161 

Heirs  of,  not  necessaiy  pai-ties 162-164 

Personal  representatives  necessary  parties 162-164 

Dying  pending  action,  revival  against  personal  representatives 164 


SURETY,    TENANTS.  295 

Suiniiious.  PAGE. 

IService  of,  on  wife 105-107 

See  Wu-'E. 
Service  of,  by  publication,  not  sufficient  for  personal  judgment....    199 

Surety. 

May  foreclose  an  indemnifying  mortgage ....  11 

Principal  not  necessary  party 11 

Of  a  note  can  foreclose  after  payment lln 

An  indorser  or  acceptor  of  bill  can  foreclose lln 

See  Indemnifying  Mortgage. 

For  mortgage  debt  may  foreclose 37 

Held  subrogated  to  rights  of  mortgagee 37 

Suretyship  may  arise  in  three  ways  : 

(1)  By  guaranteeing  payment  of  mortgage 37 

(2)  By  assumption  of  payment;  rule  of  subrogation 37,  38 

(3)  By  being  a  subsequent  incumbrancer  and  bound  to  protect  his 
own  debt 40 

Assignment  of  mortgage  not  necessary  in  either  case 38 

Assignment  can  be  compelled 38 

Equitable  subrogation,  the  theory  of  assignment 38 

Actual  payment  must  be  made  by,  before  foreclosure 41 

Survivorsliip. — See  Joint  Moiotgagors,  Joint  Mortgagees. 

T. 
Tax  Sale,  Purchaser  at. 

Not  affected  by  a  lis  pe?ide?is 98 

Pi'oper,  but  not  necessary,  defendant 167 

Regarded  as  prior  incumbrancer 167 

Not  affected  by  foreclosure  unless  a  party 167 

All  persons  interested  in  unpaid  taxes,  proper  defendants 167,  168 

Provisions  <if  New  York  Code  for  paying  taxes,  water  rates,  etc... .  168 

Tenants  and  Occupants. 

Of  mortgaged  premises  necessary  defendants 133-135 

If  omitted  as  a  i^arty,  not  bound  by  the  decree 134 

Cannot  then  be  ejected  until  expiration  of  tenancy 134 

Entitled  to  emblements  and  crops  if  omitted 134 

His  redress  against  mortgagor  if  ejected  by  foreclosure 135 

Right  to  i-emove  fixtures 135 

Measure  of  damages,  if  ejected,  value  of  unexpired  term 135 

Tenant  for  Life. 

Paying  existing  moi-tgage  will  be  subrogated  to  mortgagee's  rights,     41 


296  TRUSTEES,    UNDIVIDED    PREMISES. 

Trustees.  page. 

One  partner  acting  as  trustee  for  partnership. 19 

Of  persons  owning-  mortgage  may  foreclose 61-63 

Mortgage  executed  to,  in  trust 55,  61-63 

Cestuis  que  triist  should  generally  be  co-plaintiflFs 62,  183,  184 

May  be  made  defendants 62,183,  184 

May  be  omitted  if  very  numerous 62,     64 

Trustees  necessary  defendants  if  action  commenced  by  cestuis  que 

trust 64,  183,  184 

May  unite  with  beneficiaries  as  co-plaintiflFs 64,  183,  184 

Of  mortgagor  necessary  defendants 118,  119 

Of  mortgaged  lands  necessary  defendants 118,  119 

Invariable  rule  whatever  the  character  of  the  trust 118,  119 

Reason  for  the  rule 119 

Express  trust  or  trust  coupled  with  an  interest 119 

Must  be  a  party  in  his  oflicial  capacity 119 

Has  been  held  not  a  necessary  party  where  no  legal  or  equitable 

estate  vested  in  him 119?t 

Heirs  of  trustee  not  necessary  parties 119 

See  Cestuis  que  trust. 

Of  subsequent  mortgagees,  necessary  defendants 141 

Beneficiaries  not  necessary,  but  may  interplead 141 

u. 

Undivided  Premises. 

Owner  of  undivided  part  may  foi-eclose  mortgage  on  another  undi- 
vided part 19 

Owner  of  undivided  part,  paying  mortgage  on  whole,  may  foi-eclose 

against  the  other  owner 41 

Owner  of  undivided  part  necessary  defendant 78,  81,     87 

Mortgagee  and  mortgagoj'S  uniting  in  a  deed  of  undivided  part  does 

not  i-elease  mortgage 79 

Mortgage  by  tenant  in-common  does  not  affect  his  co-tenant 79 

A  lien  on  only  his  undivided  pai-t 79 

Such  a  mortgage  may  be  enforced  only  against  the  tenant's  divided 

part  after  partition 79 

After  partition  suit,  the  mortgage  will  be  a  lien  on  the  divided  part 

only 79 

Owner  of  part  not  mortgaged  not  a  necessary  party 80 

All  owners  of  divided  parcels  necessary  parties 81 

U.  S.  Lioaii  Coiumissioners. 

Foreclosure  by  one  held  void 35 

Usurious.— See  Void. 


WIFE.  297 

V. 

Void.  •  PAGE. 

Mortgage,  void  for  any  reason,  given  in  place  of  a  valid  mortgage, 
the  valid  moi'tgage  will  be  revived  and  foreclosed ^d^^,     H6 

w. 

Widow. — See  Wife. 

Dower  admeasured  where  husband  alone  signed  moi-tgage 104 

Decree  of  sale  must  be  for  remaining  two-thirds 104 

Not  having  executed  mortgage,  cannot  be  made  a  defendant. . .  261,  262 
Her  rights  paramount  to  mortgage 262 

Wife. 

Mortgage  made  to  husband  and  wife  jointly,  one  dying 21 

Of  mortgagor  or  owner  necessary 1  (;0-105 

Inchoate  right  of  dower,  a  i-eal  interest  in  land 100 

Necessary  defendant  if  she  signed  the  mortgage 100,  102 

Or  if  she  released  her  right  of  dower  otherwise. 1(J0 

Or  acquired  that  right  subsequent  to  the  mortgage 100 

If  mortgagor  has  two  wives,  both  necessary 101 

Cannot  grant  her  inchoate  right  of  dower  apart  from  husband 101 

If  right  of  dower  abolished  by  statute,  wife  not  necessary , .  -  .    101 

Reason  why  she  is  a  necessary  defendant 102 

Mortgage  executed  by  husband  before  marriage,  wife  necessary. . .   102 

Widow  necessary 102 

Mortgage  for  purchase  money,  wife  necessary,  though  she  did  not 

sign  it 103 

Conti'ary  rule  in  Illinois,  Indiana  and  Michigan 103 

Rights  not  affected  if  omitted  as  a  party 103 

If  she  did  not  sign  mortgage,  her  rights  will  not  be  affected,  though 

made  a  party 104 

Allegations  in  complaint  setting  forth  facts  will  not  alter  rule. . .  103,   104 

Her  dower  is  paramount  to  the  mortgage 1 04,  262 

If  omitted  as  a  defendant,  any  interested  party   may  object  by 

demurrer  or  answer 104 

After  executing  deed  of  conveyance  with  husband,  not  necessary. . .   104 

Remedy  of  wife  or  widow  if  omitted  is  to  redeem lO.') 

Right  to  redeem  accrues  at  death  of  husband 105 

Can  assert  her  rights  before  death  of  husband 10.5 

Cannot  maintain  ejectment 105 

If  she  accepts  a  devise  or  Request  in  lieu  of  dower,  not  a  necessary 

defendant 105 

Service  of  summons  upon 105,   107 

At  common-law  not  required  to  be  served  on  wife 105,  106 

Common-law  doctrine  for  this  rule 106 

20 


298  WIFE.  "' 

Wife— contimotd.  page. 

Service  on  husband  for  her  sufficient 106 

Except  where  moi-tgaged  premises  were  her  separate  estate 106 

Wife's  name  must  appear  in  the  summons , 106 

If  her  name  oinitted,  court  acquires  no  jurisdiction  of  her 106 

Common-law  rule  changed  in  New  York  by  Code 107 

Rule  now  seems  to  be  that  wife  must  be  personally  served 107 

This  is  the  rule  in  Maryland 107 

Undei-  common-law  rule,  wife  could  not  appear  separately 107 

She  can  now  ajipear  separately  without  doubt 107 

After  husband's  death,  personal  sei-vice  on  widow  always  necessary,  107 

Where  dower  abolished  by  statute,  not  a  necessary  party 108 

Where  husbands  and  wife's  rights  in  premises  severed  by  statute, 

wife  not  necessary 108 

Mortgage  executed  to  husband  and  wife,  one  dying,  survivor  fore- 
closing    181,  182 


¥"' 


&     5 


UNIVERSITY  OF  CALIFORNIA  LIBRARY 

Los  Angeles 
Thi,  book  i,  DUE  on  .he  las,  da.e  ,.amped  Mow. 


JUL  6    1985 

taw  Library  Rec'd. 
APR  21  1992 


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